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Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.
Federal Aviation Administration, DOT.
Final rule.
This amendment adopts a new airworthiness directive (AD) for Eurocopter France (ECF) Model AS-365N3 helicopters that requires modifying the Full Authority Digital Engine Control (FADEC) software within 90 days after the effective date of this AD. This amendment is prompted by a design problem in the FADEC “power loss printed circuit board” software found during laboratory testing. The actions specified by this AD are intended to prevent loss of the FADEC one-engine-inoperative power and subsequent loss of control of the helicopter.
Effective September 6, 2001.
The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of September 6, 2001.
The service information referenced in this AD may be obtained from American Eurocopter Corporation, 2701 Forum Drive, Grand Prairie, Texas 75053-4005, telephone (972) 641-3460, fax (972) 641-3527. This information may be examined at the FAA, Office of the Regional Counsel, Southwest Region, 2601 Meacham Blvd., Room 663, Fort Worth, Texas; or at the Office of the Federal Register, 800 North Capitol Street, NW., suite 700, Washington, DC.
Carroll Wright, Aviation Safety Engineer, FAA, Rotorcraft Directorate, Regulations Group, Fort Worth, Texas 76193-0111, telephone (817) 222-5120, fax (817) 222-5961.
A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an AD for ECF Model AS-365N3 helicopters was published in the
Interested persons have been afforded an opportunity to participate in the making of this amendment. No comments were received on the proposal or the FAA's determination of the cost to the public. The FAA has determined that air safety and the public interest require the adoption of the rule as proposed.
The FAA estimates that 1 helicopter of U.S. registry will be affected by this AD and that it will take approximately 17 work hours per helicopter to modify the wiring. The average labor rate is $60 per work hour. The FADEC software modification has an estimated turbomeca labor charge of $1200. The manufacturer has stated that the wiring kits will be furnished at no cost. Based on these figures, the total cost impact of the proposed AD on U.S. operators is estimated to be $2220.
The regulations adopted herein will not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this final rule does not have federalism implications under Executive Order 13132.
For the reasons discussed above, I certify that this action (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A final evaluation has been prepared for this action and it is contained in the Rules Docket. A copy of it may be obtained from the Rules Docket at the location provided under the caption
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
49 U.S.C. 106(g), 40113, 44701.
This AD applies to each helicopter identified in the preceding applicability provision, regardless of whether it has been otherwise modified, altered, or repaired in the area subject to the requirements of this AD. For helicopters that have been modified, altered, or repaired so that the performance of the requirements of this AD is affected, the owner/operator must request approval for an alternative method of compliance in accordance with paragraph (b) of this AD. The request should include an assessment of the effect of the modification, alteration, or repair on the unsafe condition addressed by this AD; and if the unsafe condition has not been eliminated, the request should include specific proposed actions to address it.
To prevent loss of the Full Authority Digital Engine Control (FADEC) one-engine-inoperative power and subsequent loss of control of the helicopter, accomplish the following:
(a) Modify the FADEC software in accordance with the Accomplishment Instructions of Eurocopter France Service Bulletin No. 71.00.13, Revision 1, dated October 17, 2000 (except this AD does not
(b) An alternative method of compliance or adjustment of the compliance time that provides an acceptable level of safety may be used if approved by the Manager, Regulations Group, Rotorcraft Directorate, FAA. Operators shall submit their requests through an FAA Principal Maintenance Inspector, who may concur or comment and then send it to the Manager, Regulations Group.
Information concerning the existence of approved alternative methods of compliance with this AD, if any, may be obtained from the Regulations Group.
(c) Special flight permits may be issued in accordance with 14 CFR 21.197 and 21.199 to operate the helicopter to a location where the requirements of this AD can be accomplished.
(d) The modification shall be done in accordance with the Accomplishment Instructions of Eurocopter France Service Bulletin No. 71.00.13, Revision 1, dated October 17, 2000. This incorporation by reference was approved by the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies may be obtained from American Eurocopter Corporation, 2701 Forum Drive, Grand Prairie, Texas 75053-4005, telephone (972) 641-3460, fax (972) 641-3527. Copies may be inspected at the FAA, Office of the Regional Counsel, Southwest Region, 2601 Meacham Blvd., Room 663, Fort Worth, Texas; or at the Office of the Federal Register, 800 North Capitol Street, NW., suite 700, Washington, DC.
(e) This amendment becomes effective on September 6, 2001.
The subject of this AD is addressed in Direction Generale De L'Aviation Civile (France) AD Nos. 2000-517-051(A) and 1998-517-048(A) R2, both dated December 13, 2000; 1998-517-048(A) R1, dated April 5, 2000; and 1998-517-048(A), dated January 13, 1999.
Federal Trade Commission.
Final rule.
The Federal Trade Commission (Commission) announces that the current ranges of comparability required by the Appliance Labeling Rule (Rule) for room air conditioners, heat pump water heaters, storage-type water heaters, gas-fired instantaneous water heaters, furnaces, boilers, and pool heaters will remain in effect until further notice.
October 31, 2001.
Hampton Newsome, Attorney, Division of Enforcement, Federal Trade Commission, Washington, DC 20580 (202-326-2889);hnewsome@ftc.gov.
The Rule was issued by the Commission in 1979, 44 FR 66466 (Nov. 19, 1979), in response to a directive in the Energy Policy and Conservation Act of 1975.
The Rule requires manufacturers of all covered appliances and pool heaters to disclose specific energy consumption or efficiency (derived from the DOE test procedures) at the point of sale in the form of an “Energy Guide” label and in catalogs. It also requires manufacturers of furnaces, central air conditioners, and heat pumps either to provide fact sheets showing additional cost information, or to be listed in industry directory showing the cost information for their products. The Rule requires manufacturers to include, on labels and fact sheets, an energy consumption or efficiency figure and a “range of comparability.” This range shows the highest and lowest energy consumption or efficiencies for all comparable appliance models so consumers can compare the energy consumption or efficiency of other models (perhaps competing brands) similar to the label model. The Rule also requires manufacturers to include, on labels for some products, a secondary energy usage disclosure in the form of an estimated annual operating cost based on a specified DOE national average cost for fuel the applicance uses.
Section 305.8(b) of the Rule requires manufactures, after filing an initial report, to report certain information annually to the Commission by specified dates for each product type.
Manufacturers have submitted data for room air conditioners, water heaters (including storage-type, gas-fired instantaneous, and heat pump water heaters), furnaces, boilers, and pool heaters. The ranges of comparability for room air conditioners, heat pump water heaters, storage-type water heaters, gas-fired instantaneous water heaters, furnaces, boilers, and pool heaters have not changed by more than 15% from the current ranges for these products. Therefore, the current ranges for these products will remain in effect until further notice.
This means that manufacturers of storage-type water heaters, furnaces, and boilers must continue to use the ranges that were published on September 23, 1994 (59 FR 48796). These manufacturers must continue to base the disclosures of estimated annual operating cost required at the bottom of EnergyGuides for these products on the 1994 Representative Average Unit Costs of Energy for electricity (8.41 cents per kilo Watt-hour), natural gas (60.4 cents per therm), propane (98 cents per gallon), and/or heating oil ($1.05 per gallon) that were published by DOE on December 29, 1993 (58 FR 68901), and
Manufacturers of heat pump water heaters must continue to use the ranges that were published on September 1, 2000 (65 FR 53163). Manufacturers of heat pump water heaters must continue to base the disclosures of estimated annual operating cost required at the bottom of EnergyGuides for these products on the 2000 Representative Average Unit Costs of Energy for electricity (8.03 cents per kiloWatt-hour) that were published by DOE on March 8, 2001 (66 FR 27856), and by the Commission on May 21, 2001 (66 FR 27856).
Manufacturers of gas-fired instantaneous water heaters must continue to use the ranges of comparability that were published on December 20, 1999 (64 FR 71019). They must continue to base the disclosures of estimated annual operating cost required at the bottom of EnergyGuides for these products on the 1999 Representative Average Unit Cost of Energy for natural gas (68.8 cents per therm) and propane (77 cents per gallon) that were published by DOE on January 5, 1999 (64 FR 487) and by the Commission on February 17, 1999 (64 FR 7783).
Manufacturers of pool heaters must continue to use the ranges that were published on August 21, 1995 (60 FR 43367). Manufacturers of room air conditioners must continue to use the corrected ranges for room air conditioners that were published on November 13, 1995 (60 FR 56945, at 56949). Manufacturers of pool heaters and room air conditioners must continue to base the disclosures of estimated annual operating cost required at the bottom of EnergyGuides for these products on the 1995 Representative Average Unit Costs of Energy for electricity (8.67 cents per kiloWatt-hour), natural gas (63 cents per therm), propane (98.5 cents per gallon), and/or heating oil ($1.008 per gallon) that were published by DOE on January 5, 1995 (60 FR 1773), and by the Commission on February 17, 1995 (60 FR 9295).
For up-to-date tables showing current range and cost information for all covered appliances, see the Commission's Appliance Labeling Rule web page at
Advertising, Energy conservation, Household appliances, Labeling, Reporting and recordkeeping requirements.
The authority citation for Part 305 continues to read as follows:
42 U.S.C. 6294.
By direction of the Commission.
Consumer Product Safety Commission.
Final rule.
Pursuant to its 3-0 vote to do so, the Consumer Product Safety Commission (CPSC or Commission) is issuing a rule to require child-resistant (CR) packaging on drugs (OTC switched drugs) approved by the Food and Drug Administration (FDA) for over-the-counter (OTC) sale that contain active ingredients previously available only in prescription drugs. Current Commission regulations require CR packaging for most oral drug products containing prescription-only active ingredients. However, prior to issuance of this rule there was no general requirement to maintain CR packaging of such drug products in forms subsequently approved by the FDA for OTC sale.
The Commission is also revoking the current prohibition on granting a petition for an exemption from a CR packaging requirement prior to FDA approval of the drug product in question.
The Commission takes these actions under authority of the Poison Prevention Packaging Act of 1970, as amended.
The rule will become effective on January 29, 2002, and applies only to products for which the new drug application (NDA) or abbreviated new drug application (ANDA) for the OTC switch is submitted to the FDA on or after that date.
Suzanne Barone, Ph.D., Directorate for Health Sciences, Consumer Product Safety Commission, Washington, D.C. 20207; telephone (301) 504-0477 ext. 1196 or Geri Smith, Office of Compliance, Consumer Product Safety Commission, Washington, D.C. 20207; telephone (301) 504-0608 ext. 1160.
The Poison Prevention Packaging Act of 1970 (PPPA), 15 U.S.C. 1471-1476, was established to protect children from serious personal injury or serious illness resulting from handling, using, or ingesting hazardous substances. Under the PPPA, the CPSC can require child-resistant packaging of hazardous household chemicals, including drugs. The CPSC currently requires child-resistant packaging of oral prescription medications, unless they have been specifically exempted from the packaging requirements. 16 CFR 1700.14(a)(10). In contrast, OTC drugs, which are also called nonprescription drugs because they can be sold to consumers without prescription by a licensed medical practitioner, have not previously been regulated as a class under the PPPA.
Regulations have been issued to require child-resistant packaging of several individual OTC products including diphenhydramine, ibuprofen, loperamide, naproxen, and ketoprofen. These oral drugs were available originally only by prescription and therefore required child-resistant packaging under the oral prescription drug regulation. The FDA subsequently granted OTC status to these drugs, thus removing them from the scope of the child-resistant packaging requirements of the oral prescription drug regulation. After each of these substances was granted OTC status, the Commission promulgated a separate regulation to require the child-resistant packaging of the drug.
The PPPA authorizes the Commission to establish standards for the “special packaging” of any household substance if: (1) The degree or nature of the hazard to children in the availability of such substance, by reason of its packaging, is such that special packaging is required to protect children from serious personal injury or serious illness resulting from handling, using, or ingesting such substance; and (2) the special packaging is technically feasible, practicable, and appropriate for such substance. 15 U.S.C. 1472(a).
CR or “special” packaging must be designed or constructed to be: (1) Significantly difficult for children under 5 years of age to open or obtain a toxic or harmful amount of the substance contained therein within a reasonable time; and (2) not difficult for “normal
Section 4(a) of the PPPA, 15 U.S.C. 1473(a), allows the manufacturer or packer to package a nonprescription product subject to special packaging standards in one size of non-CR packaging only if the manufacturer (or packer) also supplies the product in a CR package of a popular size, and the non-CR package bears conspicuous labeling stating “This package for households without young children.” 15 U.S.C. 1473(a), 16 CFR 1700.5.
On August 30, 2000, the Commission issued a notice of proposed rulemaking (NPR) that would require that CR packaging requirements applicable to an oral prescription drug product continue to apply when that drug product or any other drug product containing an active ingredient of that product is granted OTC status by the FDA. 65 FR 52678. The proposed rule would require that the new use or new dose be sold in CR packaging even if the new use or dose was not approved when the drug product was only available by prescription. This is consistent with the current regulatory approach for a new use for an oral OTC product that is already subject to a CR packaging requirement.
The proposed rule would not extend CR packaging requirements to OTC-switched products that are not oral formulations, even if they contain any of the same active ingredients as an oral preparation.
The proposed rule would require CR packaging for any OTC oral drug product containing an active ingredient that was available by prescription even if the OTC dosage is lower than the prescription strength. This recognizes the reality that absent CR packaging, the “dose” potentially available to a child is the entire package contents.
An exemption procedure exists for PPPA-regulated products that do not pose a risk of serious injury or illness to children or for which CR packaging is not technically feasible, practicable, or appropriate. 16 CFR part 1702. Under the proposed rule, this exemption procedure would remain available to manufacturers of OTC-switched products.
The proposed rule would revoke 16 CFR 1702.16(b) so that exemption petitions can be submitted and considered by the Commission earlier in the process,
To assist consumers and industry in identifying which OTC-switched drug products require CR packaging, the preamble to the proposal indicated that the Commission intended to maintain a list of OTC-switched drug products subject to the regulation as an appendix to the regulations at 16 CFR 1700.14.
Five comments were received in response to the NPR. Three of the five comments received supported the rule as proposed (CP01-1, 2, 5).
All members of the class that would be required to be in child-resistant packaging by an OTC-switch rulemaking were previously covered by the PPPA child-resistant packaging requirement for oral prescription drugs (16 CFR 1700.14(a)(10)). The statutory findings for that class were made by the FDA in the 1972-1973 rulemaking that imposed child-resistant packaging on oral prescription drugs. 38 FR 9431 (April 16, 1973).
The ability of a drug to cause serious injury to a child does not change when it is sold OTC. Child-resistant packaging remains technically feasible, practicable, and appropriate for the OTC version, just as was the case when it was required for the prescription formulation. Furthermore, the continued need for child-resistant packaging is not a factor considered by the FDA when making its decision to approve the switch of a drug from prescription to OTC status. Under the OTC-switch rule as proposed, and as issued in final form today, the responsibility/burden on a manufacturer to justify an exemption for an OTC-switched drug via the procedures of 16 CFR 1702 is the same as it was before the drug was switched.
The courts have typically approved the validity of regulatory schemes where a rule addresses a general situation that is too complex for the rule to be appropriate in every instance, but where an exemption procedure is established to deal with special situations.
In a case that addressed the Commission's Flammable Fabrics Act regulatory authority, which is analogous to that under the PPPA, the First Circuit affirmed the categorical approach to regulation.
It is the manufacturer's decision whether or not to market a
Child-resistant packaging has also become more “adult-friendly.” In 1995 the Commission issued a revised test method that tests participants aged 50 to 70, rather than 18 to 45 years of age, to ensure that most adults can use child resistant packaging properly. 16 CFR § 1700.20(a)(3)(i).
The staff cannot estimate how many petitions for exemption from the child-resistant packaging requirements the Commission will receive.
The exemption process involves rulemaking. This process can be expedited if the manufacturer meets with the CPSC staff to discuss the process before filing a petition for exemption with the Commission as outlined in 16 CFR part 1702.
There are many factors that a company considers when deciding to pursue OTC status for an oral prescription drug. These may include safety of use and potential misuse, ability of a consumer to self-treat using the medication, or a new market for a drug at the end of its patent, etc. There is much speculation in the press about drugs that may be “switched” based upon these factors. The commenter (Consumer Healthcare Products Association) publishes a list of potential switches that have been named in the trade or popular press.
A manufacturer of an oral prescription drug that is contemplating seeking approval for an OTC switch could request an exemption for the prescription drug. It is the active ingredient itself at a defined level that would then be exempted. Under the rule as proposed, an exempted oral prescription drug would remain exempted from child-resistant packaging when it is granted OTC status. For example, if an oral contraceptive or colestipol were made available OTC, it would not require child-resistant packaging if the OTC preparation met the same conditions as the exempted oral prescription form. (16 CFR 1700.14(a)(10)(iv) and (xv)). A manufacturer would still have the option of petitioning the Commission for exemption after the drug is approved for OTC sale.
Before issuing a rule requiring CR packaging, the Commission must find that the degree or nature of the hazard to children in the availability of OTC-switched drug products by reason of their packaging is such that special packaging is required to protect children from serious injury or illness from handling, using, or ingesting the drug products. 15 U.S.C. 1472(a)(1). These statutory findings were made when the rule requiring CR packaging for oral prescription drug products was promulgated in 1973. 38 Fed. Reg. 9431 (April 16, 1973).
OTC-switches did not begin to occur until several years after the 1973 rule requiring CR packaging for oral prescription drug products was promulgated. The first such switches were carried out in response to recommendations resulting from an FDA Advisory Panel's review of over-the-counter drug products.
The need to continue to protect children remains when oral prescription drug products are granted OTC status. As noted previously, a decision by the FDA to grant OTC status for a prescription drug product is not a determination that there is no toxicity to a child if the drug product is accidentally ingested. The active ingredient(s) contained in the drug product have the same toxicity whether in prescription or OTC form. The issue is whether drug products switched to OTC status at a lower dosage than was available by prescription are still hazardous to young children. This is the case since absent CR packaging, the “dose” available to a child can be the entire contents of the OTC product package. The Commission's experiences with ibuprofen and naproxen demonstrate that toxic amounts of the active ingredients are available even when lower dosages are approved for OTC product sale.
Another important consideration is that OTC drug products are more readily available to consumers and therefore more accessible to children than prescription products containing the same active ingredient(s). The Commission concludes that the available data support the finding that maintaining CR packaging is necessary to protect children from serious injury or illness from ingesting oral prescription drug products that have been granted OTC status.
As a prerequisite to a CR packaging rule, the Commission must also find that the special packaging is “technically feasible, practicable, and appropriate.” 15 U.S.C. 1472(a)(2). Technical feasibility may be found when technology exists or can be readily developed and implemented by the effective date to produce packaging that conforms to the standards. Practicability means that special packaging complying with the standards can utilize modern mass production and assembly line techniques. Packaging is appropriate when complying packaging will adequately protect the integrity of the active ingredient(s) in the product and not interfere with its intended storage or use. See S. Rep. No. 91-845, at 10 (1970).
In some cases the same packaging can be used for the OTC product as for the prescription product. However, companies must modify the labels since FDA labeling requirements for OTC drug products differ from the labeling requirements for prescription drugs. Also, most companies develop new packaging specifically for the OTC market. Unit dose packaging is popular for the OTC market, especially for drug products such as antihistamines that are sold in limited quantities. Other products containing active ingredients such as the anti-inflammatory compounds ibuprofen and naproxen are sold in bottles. CR designs of this sort of unit and reclosable packaging are commercially available. The change in status of the drug from prescription-only to OTC does not change the availability of the CR packaging in mass-produced quantities, or detract from its ability to maintain the shelf life of switched drug products. Therefore, the Commission concludes that CR packaging for OTC-switched drug products is technically feasible, practicable, and appropriate.
Section 3(b) of the PPPA requires that the Commission consider the following in establishing a special packaging standard:
a. The reasonableness of the standard;
b. Available scientific, medical, and engineering data concerning special packaging and concerning childhood accidental ingestions, illness, and injury caused by household substances;
c. The manufacturing practices of industries affected by the PPPA; and
d. The nature and use of the household substance. 15 U.S.C. 1472(b).
The Commission has considered these factors with respect to the various determinations made in this rulemaking, and finds no reason to conclude that the rule is unreasonable or otherwise inappropriate.
The packaging configuration for a drug product to be switched is determined before a company submits the NDA or the ANDA for the OTC-switch to the FDA. Accordingly, this rule applies prospectively to drug products for which the application for the OTC-switch is submitted to the FDA on or after the effective date of the final rule (180 days after publication).
The PPPA provides that no regulation shall take effect sooner than 180 days or later than one year after the date such final regulation is issued, except that, for good cause, the Commission may establish an earlier effective date if it determines an earlier date to be in the public interest. 15 U.S.C. 1471n. The NPR proposed an effective date of 180 days after publication of the final rule. The commenter suggesting a further delayed effective date seemed to believe that the proposed rule might apply to an oral prescription drug for which an NDA or ANDA had been submitted to the FDA prior to the effective date or for which the OTC switch had been approved by the FDA prior to the effective date. This is not the case. The rule as proposed and as issued today applies only to drugs for which the NDA or ANDA for the OTC switch is submitted on or after the effective date. Thus the final rule takes effect 180 days after publication.
When an agency undertakes a rulemaking proceeding, the Regulatory Flexibility Act (RFA), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 601
The Commission's Directorate for Economic Analysis prepared an assessment of the impact of a rule to maintain CR packaging for OTC-switched drug products. A copy of the analysis is available for inspection in
Because these costs (if any) are likely to be passed on to consumers, it is unlikely that the rule will have a substantial effect on a significant number of small businesses.
Many previously OTC-switched drug products are already sold in CR packaging. In some instances, for example with certain oral dosage formulations of acetaminophen, ibuprofen and loperamide, this is because the Commission has affirmatively required CR packaging. In other cases, the marketer has elected voluntarily to use CR packaging.
This rule revokes the existing requirement at 16 CFR 1702.16(b) that new drug approval be obtained from the FDA prior to Commission approval of a petition seeking exemption from a CR packaging requirement. Allowing for advance consideration and approval of any legitimate CR packaging exemption petition should minimize or eliminate any unwarranted economic impact that would otherwise result from maintaining the CR packaging requirement on OTC-switched oral prescription drug products or from requiring a change to CR packaging post-marketing.
Based on the foregoing assessment, the Commission certifies that this rule to maintain CR packaging for OTC-switched drug products does not have a significant impact on a substantial number of small businesses or other small entities.
Pursuant to the National Environmental Policy Act, and in accordance with Council on Environmental Quality regulations and CPSC procedures for environmental review, the Commission has assessed the possible environmental effects associated with the proposed PPPA requirements for OTC-switched drug products.
The Commission's regulations state that rules requiring special packaging for consumer products normally have little or no potential for affecting the human environment. 16 CFR 1021.5(c)(3). Nothing in this rule alters that expectation. Therefore, because the rule would have no adverse effect on the environment, neither an environmental assessment nor an environmental impact statement is required.
As provided for in Executive Order No. 12,988 the CPSC states the preemptive effect of this proposed regulation as follows.
The PPPA provides that, generally, when a special packaging standard issued under the PPPA is in effect, “no State or political subdivision thereof shall have any authority either to establish or continue in effect, with respect to such household substance, any standard for special packaging (and any exemption therefrom and requirement related thereto) which is not identical to the [PPPA] standard.” 15 U.S.C. 1476(a). A State or local standard may be excepted from this preemptive effect if (1) the State or local standard provides a higher degree of protection from the risk of injury or illness than the PPPA standard; and (2) the State or political subdivision applies to the Commission for an exemption from the PPPA's preemption clause and the Commission grants the exemption through procedures specified at 16 CFR part 1061. 15 U.S.C. 1476(c)(1). In addition, the Federal government, or a State or local government, may establish and continue in effect a non-identical special packaging requirement that provides a higher degree of protection than the PPPA requirement for a household substance for the Federal, State or local government's own use. 15 U.S.C. 1476(b).
Thus, with the exceptions noted above, this rule preempts non-identical state or local special packaging standards for such drug products.
Consumer protection, Drugs, Infants and children, Packaging and containers, Poison prevention, Toxic substances, Reporting and recordkeeping requirements.
15 U.S.C. 1471-76. Secs. 1700.1 and 1700.14 also issued under 15 U.S.C. 2079(a).
(a) Substances. The Commission has determined that the degree or nature of the hazard to children in the availability of the following substances, by reason of their packaging, is such that special packaging meeting the requirements of § 1700.20(a) is required to protect children from serious personal injury or serious illness resulting from handling, using, or ingesting such substances, and the special packaging herein required is technically feasible, practicable, and appropriate for these substances:
(30)
(ii) For purposes of this paragraph (30),
1. Briefing memorandum from Suzanne Barone, Ph.D., EH, to the Commission, “Final Rule to Require Special Packaging for Oral Prescription Drugs that are Granted Over-the-Counter Status by the Food and Drug Administration,” July 2, 2001.
2. Letter from Debra L. Bowen, M.D., Acting Director, Division of Over-the-Counter Drug Products, Food and Drug Administration, to Jeffrey S. Bromme, Esq., General Counsel, Consumer Product Safety Commission, October 7, 1998.
3. Memorandum from Robert L. Franklin, EC, to Suzanne Barone, Ph.D., EH, “Economic Considerations Related to the Rule to Maintain Child-Resistant Packaging Requirements for Oral Prescription Drugs that Have Been Granted OTC Status by the FDA,” May 31, 2001.
4. Memorandum from Suzanne Barone, Ph.D., Project manager for Poison prevention, Directorate for health Sciences, to Sadye E. Dunn, Secretary, Consumer Product Safety Commission, “Responses to Questions from Commissioner Moore on Over-the-Counter Switches,” June 23, 2000.
Coast Guard, DOT.
Temporary final rule.
The Coast Guard is establishing a temporary final rule governing the operation of the Belt Parkway Bridge, at mile 0.8, across Mill Basin at Brooklyn, New York. This rule allows the bridge owner to require a one-hour advance notice for bridge openings from 10 p.m. through 5 a.m., Sunday through Thursday, from July 29, 2001 through December 31, 2001. This action is necessary to facilitate structural maintenance at the bridge.
This temporary final rule is effective from July 29, 2001 through December 31, 2001.
Material received from the public, as well as documents indicated in this preamble as being available in the docket, are part of docket (CGD01-01-108) and are available for inspection or copying at the First Coast Guard District, Bridge Branch Office, 408 Atlantic Avenue, Boston, Massachusetts, 02110, 6:30 a.m. to 3 p.m., Monday through Friday, except Federal holidays.
Mr. Joseph Schmied, Project Officer, First Coast Guard District, (212) 668-7165.
The Coast Guard has determined that good cause exists under the Administrative Procedure Act (5 U.S.C. 553) for not publishing a NPRM with comment and for making this regulation effective in less than 30 days after publication in the
The Belt Parkway Bridge, at mile 0.8, across the Mill Basin, has a vertical clearance of 34 feet at mean high water, and 39 feet at mean low water in the closed position. The existing drawbridge operating regulations are listed at 33 CFR 117.795(b).
The bridge owner, New York City Department of Transportation (NYCDOT), requested a temporary regulation to facilitate structural maintenance to replace the deteriorated roadway deck at the bridge.
This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866 and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040; February 26, 1979). This conclusion is based on the fact that there have been no requests to open the bridge during the time period the bridge owner has requested an advance notice requirement.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612) we considered whether this rule would have a significant economic impact on a substantial number of small entities. “Small entities” comprises small businesses, not-for profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations less than 50,000.
The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This conclusion is based on the fact that there have been no requests to open the bridge during the time period the bridge owner has requested an advance notice requirement.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).
This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
We have analyzed this rule under Executive Order 13132 and have determined that this rule does not have implications for federalism under that Order.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) governs the issuance of Federal regulations that require unfunded mandates. An unfunded mandate is a regulation that requires a State, local, or tribal
This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not concern an environmental risk to health or risk to safety that may disproportionately affect children.
The Coast Guard considered the environmental impact of this rule and concluded that under figure 2-1, paragraph (32)(e) of Commandant Instruction M16475.1C, this rule is categorically excluded from further environmental documentation because promulgation of changes to drawbridge regulations have been found to not have a significant effect on the environment. A written “Categorical Exclusion Determination” is not required for the temporary final rule.
This final rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. It has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.
Bridges.
33 U.S.C. 499; 49 CFR 1.46; 33 CFR 1.05-1(g); section 117.255 also issued under the authority of Pub. L. 102-587, 106 Stat. 5039.
(d)(1) The draws of the New York City highway bridge, mile 0.8, across Mill Basin on Belt Parkway, need not be opened for the passage of vessels from noon to 9 p.m. on Sundays from July 29, 2001 to December 31, 2001 and on Labor Day. However, on these days, from two hours before to one hour after predicted high tide, the draw shall open on signal. For the purposes of this section, predicted high tide occurs 15 minutes later than that predicted for Sandy Hook, as given in the tide tables published by the National Oceanic and Atmospheric Administration.
(2) From 10 p.m. to 5 a.m., Sunday through Thursday, from July 29, 2001 through December 31, 2001, the draw shall open on signal after at least a one-hour advance notice is given by calling the number posted at the bridge.
(3) At all times, public vessels of the United States and state or local vessels used for public safety shall be passed as soon as possible.
Coast Guard, DOT.
Notice of temporary deviation from regulations.
The Commander, Eighth Coast Guard District has issued a temporary deviation from the regulation in 33 CFR 117.5 governing the operation of the Kansas City Southern Railroad swing span bridge across the Ouachita River, mile 167.1, at Monroe, Ouachita Parish, Louisiana. This deviation allows the bridge owner to close the bridge to navigation from noon on Sunday, August 19, 2001 until noon on Tuesday, August 21, 2001. Presently, the draw is required to open on signal for the passage of vessels. This temporary deviation was issued to allow for repairs to the turn span of the bridge.
This deviation is effective from noon on August 19, 2001 until noon on August 21, 2001.
Unless otherwise indicated, documents referred to in this notice are available for inspection or copying at the office of the Eighth Coast Guard District, Bridge Administration Branch, Commander (ob), 501 Magazine Street, New Orleans, Louisiana, 70130-3396. The Bridge Administration Branch maintains the public docket for this temporary deviation.
David Frank, Bridge Administration Branch, telephone (504) 589-2965.
The Kansas City Southern Railroad swing span bridge across the Ouachita River, mile 167.1, at Monroe, Ouachita Parish, Louisiana has a vertical clearance of 2 feet above high water in the closed-to-navigation position and 52 feet above high water in the open-to-navigation position. Navigation on the waterway consists primarily of tugs with tows. Modjeski and Masters, consulting engineers for the Kansas City Southern Railroad requested a temporary deviation from the normal operation of the drawbridge in order to accommodate the jacking of the swing span at the center and ends (bridge in the closed position) sufficient to raise the center circular turning track several inches to improve the opening and closing of the swing span. This maintenance is
This deviation allows the draw of Kansas City Southern Railroad swing span bridge across the Ouachita River, mile 167.1, to remain closed to navigation from noon on August 19, 2001 until noon on August 21, 2001.
Coast Guard, DOT.
Final rule.
The Coast Guard is changing the regulations that govern the operation of the Graydon Paul Drawbridge on US 70 across Beaufort Channel, also known as Gallant's Channel mile 0.1, located in Beaufort, North Carolina, at the request of the North Carolina Department of Transportation.
The final rule reduces the number of bridge openings during times of peak highway traffic. This final rule is intended to reduce motor vehicular delays and congestion related to commuter traffic going to and from work in the mornings and evenings, while still providing for the reasonable needs of navigation.
This final rule is effective on September 4, 2001.
Comments and material received from the public, as well as documents indicated in this preamble as being available in the docket are part of docket CGD05-01-001, and are available for inspection or copying at the office of the Commander (Aowb), Fifth Coast Guard District, Federal Building, 4th Floor, 431 Crawford Street, Portsmouth, Virginia 23704-5004, between 8 a.m. and 4:30 p.m., Monday through Friday, except Federal holidays. The telephone number is (757) 398-6222.
Ann Deaton, Bridge Administrator, Fifth Coast Guard District, (757) 398-6222.
On April 13, 2001, the Coast Guard published a Notice of Proposed Rulemaking (NPRM) entitled “Drawbridge Operation Regulations; Beaufort Channel, Beaufort, NC” in the
The Graydon Paul Drawbridge across Beaufort Channel, located in Beaufort, North Carolina, is owned and operated by the North Carolina Department of Transportation (NCDOT). The current regulation at 33 CFR 117.822 requires the bridge to open on signal, except that from 6 a.m. to 10 p.m., the draw opens on signal for all vessels waiting to pass every hour on the hour, twenty minutes past the hour and forty minutes past the hour; except that on weekdays the bridge need not open at 7:40 a.m., 8:40 a.m., 4:40 p.m. and 5:40 p.m.
NCDOT requested that openings of the Graydon Paul Drawbridge be further restricted by limiting drawbridge openings to on the hour and half hour seven days a week and rush hour restrictions from 6:30 a.m. to 8 a.m. and 4:30 p.m. to 6 p.m. during weekday morning and evening rush hours. This request to change the current regulation is based on heavy vehicular commuter traffic traveling to and from the Town of Beaufort during peak rush hour periods. The Graydon Paul Drawbridge is located on US Highway 70, which is the only corridor entering and exiting the town of Beaufort from Morehead City, North Carolina. Drawbridge openings create long traffic backups often extending for 6 to 7 miles. The heavy congestion often results in vehicular accidents. NCDOT contends that openings on the hour and half hour and extending rush hour restrictions will allow the bridge to clear the traffic before another opening occurred. Vehicular traffic congestion on US Highway 70 will be reduced and highway safety will be increased without placing undue hardship on vessel traffic.
NCDOT provided the Coast Guard with statistical data which shows that 12-13000 vehicles cross the drawbridge each day. When drawbridge openings occur every twenty minutes, traffic backups extend for several miles and cannot clear before the next opening. One mile South of the Graydon Paul Drawbridge on the same route is the Morehead City US 70 Bridge, which is a fixed 65 ft vertical clearance bridge on the Atlantic Intracoastal Waterway (AICWW). It is an alternate route for boaters to go around through the AICWW by Morehead City back to Beaufort. Motorist do not have an alternate route on US 70 back and forth to and from Beaufort to Morehead City. In reviewing the recent draw logs and traffic counts, the Coast Guard has determined that the current regulations do not allow traffic to clear especially during rush hour periods and there was minimal vessel traffic at these times, therefore, a reduction in the number of openings will not substantially impact navigational traffic, but will provide a positive offsetting benefit to vehicular traffic.
The Coast Guard is amending § 117.822 by changing drawbridge openings from 6 a.m. to 10 p.m. to opening on the hour and half hour and eliminating openings from 6:30 a.m. to 8 a.m. and 4:30 p.m. to 6 p.m. on weekdays only, year round. All other provisions of the existing regulation will remain the same.
The Coast Guard received 5 letters on the NPRM in support of the proposed changes to the regulation. The comments applauded the change and went further in asking that the bridge be welded shut. Since all of the comments favorably addressed the proposed change for which comments were being solicited, and the Coast Guard has determined permanently closing the bridge to all vessel traffic would interfere with navigation, the final rule is being implemented without change.
This final rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that order. The Office of Management and Budget has not reviewed it, under that order. It is not significant under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040; February 26, 1979).
The Coast Guard expects the economic impact of this final rule to be so minimal that a full Regulatory Evaluation under paragraph 10e of the regulatory policies and procedures of DOT is unnecessary.
The Coast Guard reached this conclusion based on the fact that the final rule will not prevent mariners from transiting the bridge, but merely require them to plan their transits in accordance with the scheduled bridge openings.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), the Coast Guard has considered whether this final rule will have a significant economic impact on a substantial number of small entities. The term “Small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this final rule will not have a significant economic impact on a substantial number of small entities. This is based on the fact that we contacted the local commercial facilities affected by this change to the regulations and received no adverse comments. The proposed regulation will still provide for the reasonable needs of navigation while improving highway conditions by restricting the vessel openings of the bridge from every twenty minutes to on the hour and half hour.
This final rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process.
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.
The Unfunded Mandates reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by the State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in the preamble.
This rule will not effect the taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmentally significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.
This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. It has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.
The Coast Guard considered the environmental impact of this final rule and concluded that under figure 2-1, paragraph (32)(e) of COMDTINST M16475.1C, this final rule is categorically excluded from further environmental documentation based on the fact that it is a promulgation of the operating regulations for a drawbridge. A Categorical Exclusion Determination statement has been prepared and placed in the rulemaking docket.
Bridges.
33 U.S.C. 499; 49 CFR 1.46; 33 CFR 1.05-1(g); Section 117.255 also issued under the authority of Pub. L. 102-587, 106 Stat. 5039.
The draw of the US 70 bridge, mile 0.1, at Beaufort, shall open as follows:
(a) From 6 a.m. to 10 p.m., the draw need only open every hour on the hour and on the half hour; except that Monday through Friday the bridge need not open between the hours of 6:30 a.m. to 8 a.m. and 4:30 p.m. to 6 p.m.
(b) From 10 p.m. to 6 a.m., the bridge shall open on signal.
Coast Guard, DOT.
Temporary final rule.
The Coast Guard is establishing a temporary moving safety zone 1000 yards ahead, 1000 yards astern, and 50 yards to each side of any deep draft vessel that can safely navigate only within the channel of St. Clair River, during the Blue Water Offshore Classic on August 3, 4 and 5, 2001. The moving safety zone is necessary to prevent damage or injury to the deep draft vessels or personnel involved in the Blue Water Offshore Power Boat Race. Only authorized vessels are permitted to enter or remain within the safety zone.
This temporary final rule is effective from 8 a.m. on August 3, 2001, through 6 p.m. on August 5, 2001.
Comments and material received from the public, as well as documents indicated in this preamble as being available in the docket, are part of docket CGD09-01-099 and are available for inspection or copying at: U.S. Coast Guard Marine Safety Office Detroit, 110 Mt. Elliott St. Detroit, MI 48207, between 8 a.m. and 4 p.m., Monday through Friday, except Federal holidays.
ENS Brandon Sullivan, U.S. Coast Guard Marine Safety Office Detroit, telephone number (313) 568-9558.
We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
A temporary moving safety zone is necessary to ensure the safety of commercial vessels and race participants from the hazards associated with high-speed powerboat racing. The likely combination of large numbers of recreational vessels, congested waterways, high-speed watercraft, and deep draft commercial vessels could easily result in serious injuries or fatalities. Establishing a moving safety zone to control vessel movement around the commercial vessels while transiting through the racecourse will help ensure the safety of persons and property at this event and help minimize the associated risk.
The moving safety zone will encompass all waters within 1000 yards ahead, 1000 yards behind, and 50 yards on either side of any deep draft vessel that can only safely navigate within the channel of St. Clair River.
The moving safety zone will be enforced to the South, 500 yards East of the Newman and River Road Intersection at position 42°51′54″ N, 082°28′00″ W. These coordinates are based upon North American Datum 1983 (NAD 83). To the North, the moving safety zone will be enforced 300 yards East of the St. Clair Michigan State Police Docks at position 42°28′54″ N, 082°28′48″ W (NAD 83).
All persons and vessels shall comply with the instructions of the Coast Guard Captain of the Port or the designated on scene patrol representative. Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port Detroit or his designated on scene representative. The Captain of the Port or his designated on scene representative may be contacted via VHF Channel 16.
This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866 and does not require an assessment of potential costs and benefits under section 6(a)(3) of that order. The Office of Management and Budget has not reviewed this rule under that order. It is not “significant” under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040, February 26, 1979). We expect the economic impact of this rule to be so minimal that a full Regulatory Evaluation under paragraph 10(e) of the regulatory policies and procedures of DOT is unnecessary.
This determination is based on the minimal time that vessels will be restricted from the zone, and therefore minor if any impacts to Mariners.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we considered whether this rule would have a significant impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.
The Coast Guard certifies under 5 U.S.C. 605(b) that this rule would not have a significant economic impact on a substantial number of small entities.
This rule would affect the following entities, some of which might be small entities: The owners or operators of commercial vessels intending to transit or anchor in a portion of the activated safety zone.
This moving safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons: The safety zone is only in effect from 6 a.m. until 8 p.m. on the days of the event; commercial vessel traffic will not be impeded in any way by this moving safety zone and traffic may be allowed to pass through the safety zone under Coast Guard escort with the permission of the Captain of the Port Detroit or his designated on-scene representative. Before the effective period, we will issue maritime advisories widely available to users of the St. Clair River by the Ninth Coast Guard District Local Notice to Mariners, and Marine Information Broadcasts. Facsimile broadcasts may also be made.
If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule so that they can better evaluate its effects and participate in the rulemaking process. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact Marine Safety Office Detroit (see
Small businesses may send comments on the actions of Federal employees
This rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
We have analyzed this rule under Executive Order 13132 and have determined that this rule does not have implications for federalism under that Order.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This rule would not affect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
The Coast Guard has analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not concern an environmental risk to health or risk to safety that may disproportionately affect children.
We have considered the environmental impact of this rule and concluded that, under figure 2-1, paragraph 34(g) of Commandant Instruction M16475.1C, this rule is categorically excluded from further environmental documentation. A written categorical exclusion determination is available in the docket for inspection or copying where indicated under
This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
Harbors, Marine Safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
33 U.S.C. 1231; 50 U.S.C. 191, 33 CFR 1.05-1(g), 6.04-1, 6.04-6, 160.5; 49 CFR 1.46.
(a)
(b)
(c)
Environmental Protection Agency (EPA).
Final rule and direct final rule; corrections and amendments.
The EPA is taking direct final action to amend the national emission standards for hazardous air pollutants (NESHAP) for pharmaceuticals production. This direct final rule provides additional compliance options for process vent and storage tank emissions, specifies additional methods that may be used to analyze wastewater, shifts one compound from the list of partially soluble hazardous air pollutants (HAP) to the list of soluble HAP, eliminates an unintended restriction on the use of enhanced biological treatment, allows a sewer line between drains and the first downstream junction box to be vented, clarifies how to assign storage tanks that are shared among pharmaceutical manufacturing process units and other types of process units, clarifies the monitoring frequency requirements for connectors, clarifies and simplifies recordkeeping and reporting requirements, eliminates inconsistencies, and corrects several referencing and typesetting errors. We view these revisions to be minor and noncontroversial, and we anticipate no adverse comment.
In compliance with the Paperwork Reduction Act (PRA), this action also amends the table that lists the Office of Management and Budget (OMB) control numbers issued under the PRA for the pharmaceuticals production rule.
The amendments to 40 CFR part 9 are effective on August 2, 2001. The direct final rule amendments to 40 CFR
Mr. Randy McDonald, Organic Chemicals Group, Emission Standards Division (MD-13), U.S. EPA, Research Triangle Park, North Carolina 27711, telephone number (919) 541-5402, electronic mail address: mcdonald.randy@epa.gov.
Commenters wishing to submit proprietary information for consideration must clearly distinguish such information from other comments and clearly label it as CBI. Send submissions containing such proprietary information directly to the following address, and not to the public docket, to ensure that proprietary information is not inadvertently placed in the docket: Attention: Mr. Randy McDonald, c/o OAQPS Document Control Officer (Room 740B), U.S. EPA, 411 W. Chapel Hill Street, Durham, NC 27701. The EPA will disclose information identified as CBI only to the extent allowed by the procedures set forth in 40 CFR part 2. If no claim of confidentiality accompanies a submission when it is received by EPA, the information may be made available to the public without further notice to the commenter.
This table is not intended to be exhaustive, but rather provides a guide for readers likely to be interested in the revisions to the regulation affected by this action. To determine whether your facility, company, business, organization, etc., is regulated by this action, you should carefully examine all of the applicability criteria in § 63.1250 of the rule. If you have questions regarding the applicability of these amendments to a particular entity, consult the person listed in the preceding
In this direct final rule, we are correcting referencing and typesetting errors, identifying additional test methods that may be used to analyze wastewater, classifying triethylamine as a soluble HAP instead of a partially soluble HAP, adding an outlet concentration limit compliance option for storage tanks, clarifying the monitoring frequency for connectors, clarifying storage tank assignment procedures, and adding planned routine maintenance provisions for centralized combustion control devices (CCCD). These changes provide clarifications and additional compliance options. In all instances, we believe that these changes have the potential to reduce the burden on both owners and operators of affected sources and on the State or local agency implementing the rule, although we are unable to quantify reductions in hours for these amendments. For these reasons, we view these amendments as noncontroversial and anticipate no adverse comments, and we are publishing these amendments in a direct final rule.
If an adverse comment applies to an amendment, paragraph, or section of this direct final rule, and that provision may be addressed separately from the remainder of the rule, we will withdraw only those provisions on which we received adverse comments. In the “Proposed Rules” section of this
This final rule amends the table of currently approved Information Collection Request (ICR) control numbers issued by OMB. As noted in section VII.G of this preamble, as well as in the preambles to earlier amendments and the promulgated rule, OMB has approved the information collection requirements contained in subpart GGG and assigned OMB control No. 2060-0358. However, when we amended § 9.1 on September 21, 1998, we entered the incorrect number 2060-0314. Because the correct number was listed in the earlier preambles and amendment of the table is technical in nature, we believe that another notice and comment period for this amendment is unnecessary and that there is good cause under the Administrative Procedure Act (5 U.S.C. 553(b)) to amend this table without prior notice and comment.
This direct final rule specifies requirements for meeting the process vent standards during periods of planned routine maintenance of CCCD. Use of a CCCD, while not required by subpart GGG, is a common control technique at existing pharmaceutical production facilities because the facilities have found such a device to be more reliable and efficient than multiple point-of-use devices. However, under subpart GGG as currently written, when routine maintenance on a CCCD is needed, you must either shutdown all processes or have a backup control device that you have demonstrated achieves the same level of control. We understand that shutting down all processes is inefficient and costly for at least two reasons: (1) Because all processes have different cycles, the shutdown would almost certainly have to be staggered, which means some process equipment would have to be shutdown for a longer period than is needed simply to perform the maintenance on the control device; and (2) pharmaceutical production facilities often shutdown only a section of the facility for maintenance as opposed to the entire facility because it is impractical to have an in-house maintenance staff large enough to perform such maintenance in a short period of time, and outside resources may not be sufficiently skilled or available when needed. We also realize that demonstrating compliance for a backup device could be a significant burden. To address these concerns, this direct final rule provides an additional compliance option for periods of planned routine maintenance of a CCCD that is simple to implement and achieves reductions that are at least equivalent to the maximum achievable control technology (MACT) floor.
The new planned routine maintenance provisions specify separate requirements for organic HAP emissions and hydrogen chloride (HCl) emissions. You must route emissions from process vents with organic HAP emissions greater than 15 pounds per day (lb/day) through a closed vent system to a condenser that operates at: (1) Less than 50 degrees centigrade (C) when the emission stream contains HAP with a partial pressure greater than 20 kilopascals (kPa) and (2) less than −5 degrees C when the emission stream contains HAP with a partial pressure less than or equal to 20 kPa. The partial pressures must be determined at 25 C. These requirements are designed to be similar to State reasonably available control technology rules that are based on the generalized control program described on page 1-5 of the 1978 Control Techniques Guideline (CTG) Document for Control of Volatile Organic Emissions from Manufacture of
Because the CTG did not cover HCl emissions, the planned routine maintenance provisions specify that you must route emissions from process vents with HCl emissions greater than or equal to 15 lb/day through a closed vent system to a caustic scrubber. As with the condenser, we have kept compliance requirements simple. Compliance is demonstrated by daily monitoring of the scrubber effluent and maintaining the effluent at pH 9 or greater.
Although § 63.1258 of the pharmaceuticals production NESHAP specifies parameters for scrubbers, we are not requiring monitoring of the scrubber liquid flow rate or pressure drop for caustic scrubbers during periods of planned routine maintenance. The effectiveness of absorbing HCl into caustic solution is so great that monitoring effluent pH is adequate to demonstrate compliance. The relatively small amount of HCl generated during periods of planned routine maintenance does not justify the need to burden the industry with design evaluation demonstrations and continuous monitoring for each individual scrubber application during the limited period of planned routine maintenance.
Hydrogen chloride has a great affinity for water. Referencing the “Chemical Engineering Handbook” by Perry and Chilton, solubility of HCl is almost 70 grams per 100 grams of water at 30 degrees C. An aqueous solution at the same temperature can absorb up to 10 percent HCl before reaching an equilibrium of 20 parts per million volume (ppmv) of HCl in the gas phase. In addition, absorption increases as vapor pressure decreases, and vapor pressure of HCl can be decreased significantly by adding a chemical reactant such as sodium hydroxide (NaOH) to tie up the solute gas. The chemical reaction in a caustic scrubber frees up liquid volume for dissolving more gas. A caustic scrubber operating such that the effluent stays at or above pH 9 is considered a very effective control device.
The 15 lb/day emission rate cutoffs apply to emissions from vents on individual unit operations, not to aggregated emissions from multiple unit operations that are manifolded together into a common header (i.e., the emission rates must be determined only at the equipment where the emissions enter the closed vent system prior to being combined with emissions from other unit operations). Therefore, a manifolded stream with emissions that exceed 15 lb/day is not subject to control requirements during periods of planned routine maintenance of the CCCD if the emissions from each of the unit operation vents that are combined in that manifold have emissions less than 15 lb/day. If any individual unit operation vents with emissions less than 15 lb/day are manifolded with a unit operation vent that has emissions greater than or equal to 15 lb/day, then the entire manifolded stream must be controlled (or the emissions from the unit operation with emissions greater than 15 lb/day must be diverted from the other vents in the manifold for control).
You may use the planned routine maintenance provisions if you use the CCCD to comply with any of the requirements in § 63.1254(a) of the pharmaceuticals production NESHAP for process vents from all non-dedicated pharmaceutical manufacturing process units (PMPU) that are controlled by the CCCD. However, there are several requirements to ensure that the level of control achieved is at least equivalent to the MACT floor. First, you may only route emissions from vents that are subject to the 98 percent reduction requirement in § 63.1254(a)(3) if you demonstrate that the planned routine maintenance is needed and that there is no way to perform it during periods when a process with such a vent is not operating. To make this demonstration, you must document your plans in either your Notification of Compliance Status Report or in a periodic report that is submitted prior to the planned routine maintenance event. Second, if you use the CCCD to control emissions so as to comply with the annual mass limit, you must calculate controlled emissions during periods of planned routine maintenance assuming the control efficiency is 93 percent. Third, whenever you implement the planned routine maintenance provisions, you must monitor the condenser outlet temperature as specified in § 63.1258(i). This requirement applies even if you comply with the alternative standard or if the CCCD is a boiler, process heater, or hazardous waste incinerator that meets any of the criteria in § 63.1257(a)(4). Fourth, you may not use the process vents in emissions averaging during the period that you comply with the planned routine maintenance provisions. During this time period, the process vents are being controlled to the level of the MACT floor; thus, no debits or credits can be calculated.
There are also several other restrictions on how the planned routine maintenance provisions may be implemented. For example, the planned routine maintenance provisions may be implemented for no more than 240 hours per year (hr/yr). This time period is consistent with the time allowed in § 63.1253(e) of the pharmaceuticals production NESHAP for planned routine maintenance of a control device used to control storage tank emissions. As we have stated in previous rulemaking packages, we believe this time is sufficient to perform maintenance on combustion devices (59 FR 19441, April 22, 1994). In addition, the planned routine maintenance provisions are not available for process vents from dedicated PMPU because planning a shutdown for such a PMPU can be more easily scheduled than for non-dedicated PMPU whose operation is more unpredictable in nature. Finally, the planned routine maintenance provisions may not be used for emissions from wastewater systems or equipment leaks because the MACT floor level of control for these emissions is 95 percent. If the CCCD is used to control emissions from storage tanks, you may elect to control them with the condenser during periods of planned routine maintenance. However, this control is not required because § 63.1253(e) specifies that the emission limitations are not applicable during periods of planned routine maintenance up to 240 hr/yr.
This direct final rule makes four changes to the wastewater provisions. One change is that we are adding two EPA test methods to the list of acceptable test methods that may be used to analyze wastewater samples. The second change is that we are reclassifying triethylamine as a soluble HAP instead of as a partially soluble HAP. The third change is to allow wastewater streams with more than 50 parts per million weight (ppmw) of partially soluble HAP to be sent to an enhanced biological treatment unit if the partially soluble HAP has already been reduced by 99 percent or more. The fourth change is to modify the
Section 63.1257(b)(10)(ii) of the amended final rule states that you may use EPA Methods 624, 625, 1624, and 1625 of 40 CFR part 136 to determine the concentration of various HAP in wastewater samples (65 FR 52610, August 29, 2000). This direct final rule adds EPA Methods 1666 and 1671 to that list so that you may use them routinely without performing the method validation procedures required in § 63.1257(b)(10)(iv). The two new methods can be used to measure certain analytes (e.g., methanol, acetonitrile, and n-hexane) that cannot be measured using the other methods in 40 CFR part 136. These two methods were added to 40 CFR part 136 when the revisions to the pharmaceutical effluent limitation guidelines and standards were promulgated in September 1998. They have the same quality assurance/quality control requirements as the earlier methods; in particular, sampling must be conducted so as to minimize loss of volatile compounds. In addition, they can detect target HAP at the outlet concentrations that may be required by the rule (e.g., as low as 13 ppmw in the outlet from a treatment unit that must reduce partially soluble HAP by 99 percent).
For the final rule, compounds were classified as either partially soluble HAP or soluble HAP based on their Henry's Law constants. Triethylamine was classified as a partially soluble HAP listed in Table 2 of subpart GGG because its Henry's Law constant is relatively high. However, in this direct final rule, we are now removing triethylamine from Table 2 of subpart GGG and reclassifying it as a soluble HAP in Table 3 of subpart GGG because it has two unique characteristics that distinguish it from the listed partially soluble HAP. First, at pH ranges of 6 to 9 (typical for pharmaceutical production wastewater), triethylamine has unique ionic disassociative properties, unlike the listed partially soluble HAP. In the liquid phase, the nitrogen in triethylamine has an unshared pair of electrons that readily react with a proton in the liquid. As a result, virtually all of the free triethylamine in solution is converted to triethylammonium ions, which are soluble, non-volatile, and stable. Second, triethylamine is unique among the HAP used in the pharmaceutical production industry in that it typically is used as an organic base in reactions (in situations where an inorganic base is not acceptable) and not as a primary solvent.
Section 63.1256(g)(10) of the pharmaceuticals production NESHAP specifies that the partially soluble HAP concentration in wastewater streams sent to an enhanced biological treatment unit must be less than 50 ppmw. An unintended effect of this restriction is that it applies even if the partially soluble HAP has been reduced by more than 99 percent by treatment upstream of the enhanced biological treatment unit. This restriction is unnecessary because a 99 percent reduction in the partially soluble HAP is otherwise sufficient; there is no reason to prevent the use of enhanced biological treatment to reduce the soluble HAP in the same stream. Therefore, we have amended § 63.1256(g)(10) to clarify that a wastewater stream may be sent to an enhanced biological treatment unit if the partially soluble HAP is reduced to a concentration less than 50 ppmw or by at least 99 percent (i.e., in accordance with § 63.1256(g)(8)) in a treatment unit upstream of the enhanced biological treatment unit.
Section 63.1256(e) of subpart GGG specifies work practice standards to suppress emissions from individual drain systems. These standards allow junction boxes to be vented, but not sewer lines. Without a vent, wastewater may backup in drains and not flow properly to the first downstream junction box if there are low points in the sewer line. To alleviate this problem, we have revised § 63.1256(e)(4)(iii) to allow venting of a sewer line between drains and the first downstream junction box, provided certain conditions are met. First, the drains must be equipped with either water seals or tightly fitting caps or plugs as specified in § 63.1256(e)(4)(i). Second, the sewer line entrance to the first downstream junction box must be water sealed. These provisions apply regardless of whether the junction box is vented to the atmosphere or to a process or control device. They also are standard operating practices, and they ensure that air will not flow through the sewer line and be emitted from the vent on the sewer line. Finally, the size of the atmospheric opening is minimized by having the sewer line vent pipe meet the same design criteria as for vents on junction boxes.
The final rule specifies that wastewater samples may be grab samples or composite samples, samples must be taken at approximately equally-spaced time intervals over a 1-hour period, each 1-hour period constitutes a run, and a performance test must consist of at least three runs (§ 63.1257(e)(2)(iii)(B), (C)(
This direct final rule adds an outlet concentration limit compliance option for storage tank emissions. Under this option, you must conduct an initial performance test to demonstrate that emissions are reduced to outlet concentrations less than or equal to 20 ppmv as total organic compound (TOC) and less than or equal to 20 ppmv as hydrogen halides and halogens. You also must establish applicable operating parameter levels during the performance test to use as monitoring limits for ongoing compliance demonstrations. This option is identical to options already provided for process vent emissions and wastewater emissions.
The exclusion of this option for storage tanks was an oversight that was only recently discovered. We always intended to provide this option for storage tank emissions as well as other
This direct final rule corrects referencing errors, corrects drafting and typesetting errors, and clarifies the intent of several provisions. All of the minor technical corrections are described in Table 1.
Under Executive Order 12866 (58 FR 51735, October 4, 1993), EPA must determine whether the regulatory action is “significant” and therefore, subject to OMB review and the requirements of the Executive Order. The Executive Order defines “significant regulatory action” as one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities;
(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligations of recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.
Pursuant to the terms of Executive Order 12866, it has been determined that these amendments do not constitute a “significant regulatory action” because they do not meet any of the above criteria. Consequently, this action was not submitted to OMB for review under Executive Order 12866.
Executive Order 13132 (64 FR 43255, August 10, 1999) requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”
These rule amendments do not have federalism implications. They will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, because State and local governments do not own or operate any sources that would be subject to these amendments. Thus, the requirements of section 6 of the Executive Order do not apply to these rules.
Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 6, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officals in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” are defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.”
These rule amendments do not have tribal implications. They will not have substantial direct effects on tribal governments, or on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes, as specified in Executive Order 13175. No tribal governments own or operate pharmaceutical production facilities. Thus, Executive Order 13175 does not apply to these rule amendments.
Executive Order 13045 (62 FR 19885, April 23, 1997) applies to any rule that: (1) Is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, EPA must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by EPA.
The EPA interprets Executive Order 13045 as applying only to those regulatory actions that are based on health or safety risks, such that the analysis required under section 5-501 of the Executive Order has the potential to influence the regulation. These rule amendments are not subject to Executive Order 13045 because they are based on technology performance, not health or safety risks. Furthermore, these rule amendments have been determined not to be “economically significant” as defined under Executive Order 12866.
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures by State, local, and tribal governments, in aggregate, or by the private sector, of $100 million or more in any 1 year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least-costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least-costly, most cost-effective, or least-burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.
The EPA has determined that these rule amendments do not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, or tribal governments, in the aggregate, or the private sector in any 1 year. The maximum total annual cost of the Pharmaceuticals Production NESHAP for any year has been estimated to be approximately $64 million (63 FR 50287, September 21, 1998), and today's amendments do not add new requirements that would increase this cost. Thus, these rule amendments are not subject to the requirements of sections 202 and 205 of the UMRA. In addition, EPA has determined that these rule amendments contain no regulatory requirements that might significantly or uniquely affect small governments because they contain no requirements that apply to such governments or impose obligations upon them. Therefore, these rule amendments are not subject to the requirements of section 203 of the UMRA.
The EPA has determined that it is not necessary to prepare a regulatory flexibility analysis in connection with this direct final rule. The EPA has also determined that this direct final rule will not have a significant impact on a substantial number of small entities. For purposes of assessing the impacts of this direct final rule on small entities, a small entity is defined as: (1) A small business in the North American Industrial Classification System (NAICS) code 325411 or 325412 that has as many as 750 employees; (2) a small business in NAICS code 325199 that has as many as 1,000 employees; (3) a small governmental jurisdiction that is a government of a city, county, town, school district, or special district with a population of less than 50,000; and (4) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.
After considering the economic impacts of today's rule amendments on small entities, EPA has concluded that this action will not have a significant economic impact on a substantial number of small entities. In determining whether a rule has a significant economic impact on a substantial number of small entities, the impact of concern is any significant adverse economic impact on small entities, since the primary purpose of the regulatory flexibility analyses is to identify and address regulatory alternatives “which minimize any
The OMB has approved the information collection requirements contained in the 1998 pharmaceuticals production NESHAP under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501
The amendments contained in these final rules will have no net impact on the information collection burden estimates made previously. Consequently, the ICR has not been revised.
Section 12(d) of the National Technology Transfer and Advancement Act (NTTAA), Public Law 104-113 (March 7, 1996), directs all Federal agencies to use voluntary consensus standards instead of government-unique standards in their regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., material specifications, test methods, sampling and analytical procedures, and business practices) that are developed or adopted by one or more voluntary consensus bodies. Examples of organizations generally regarded as voluntary consensus standards bodies include the American Society for Testing and Materials (ASTM), the National Fire Protection Association (NFPA), and the Society of Automotive Engineers (SAE). The NTTAA requires Federal agencies like EPA to provide Congress, through OMB, with explanations when an agency does not use available and applicable voluntary consensus standards.
During the rulemaking, EPA searched for voluntary consensus standards that might be applicable. The search identified no applicable voluntary consensus standards. Accordingly, the NTTAA requirement to use applicable voluntary consensus standards does not apply to this direct final rule.
The Congressional Review Act (CRA), 5 U.S.C. 801,
Section 808 allows the issuing agency to make a rule effective sooner than otherwise provided by the CRA if the agency makes a good cause finding that notice and public procedure is impracticable, unnecessary or contrary to the public interest. This determination must be supported by a brief statement (5 U.S.C. 808(2)). As stated previously, for the amendments to the table that lists OMB control numbers, EPA has made such a good cause finding, including the reasons therefor, and established an effective date of August 2, 2001. The EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the
This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)) because it is not a significant regulatory action under Executive Order 12866.
Environmental protection, Administrative practice and procedure, Air pollution control, Hazardous substances, Intergovernmental relations, Reporting and recordkeeping requirements.
7 U.S.C. 135
42 U.S.C. 7401,
(e)
(1) If a storage tank is dedicated to a single PMPU, the storage tank shall belong to that PMPU.
(2) If a storage tank is shared among process units (including at least one PMPU), then the storage tank shall belong to the process unit located on the same plant site as the storage tank that has the greatest annual volume input into or output from the storage tank (i.e., said PMPU or process unit has the predominant use of the storage tank).
(3) If predominant use cannot be determined for a storage tank that is shared among process units (including at least one PMPU), then the owner or operator shall assign the storage tank to any one of the PMPU's that shares it and is also subject to this subpart.
(4) If the predominant use of a storage tank varies from year to year, then predominant use shall be determined based on the utilization that occurred during the year preceding September 21, 1998 for existing affected sources. For new affected sources, predominant use will be based on the first year after initial startup. The determination of predominant use shall be reported in the Notification of Compliance Status required by § 63.1260(f). If the predominant use changes, the redetermination of predominant use shall be reported in the next Periodic report.
(5) If the storage tank begins receiving material from (or sending material to) another PMPU, or ceases to receive material from (or send material to) a PMPU, or if the applicability of this subpart to a storage tank has been determined according to the provisions of paragraphs (e)(1) through (4) of this section and there is a significant change in the use of the storage tank that could reasonably change the predominant use, the owner or operator shall reevaluate the applicability of this subpart to the storage tank and report such changes to EPA in the next Periodic report.
(h) * * *
(2)
(ii) After the compliance dates specified in this section, if any equipment at an affected source that is subject to § 63.1255, is also subject to 40 CFR part 264, subpart BB, or to 40 CFR part 265, subpart BB, then compliance with the recordkeeping and reporting requirements of 40 CFR parts 264 and/or 265 may be used to comply with the recordkeeping and reporting requirements of § 63.1255, to the extent that the requirements of 40 CFR parts 264 and/or 265 duplicate the requirements of § 63.1255. The owner or operator shall identify in the Notification of Compliance Status, required by § 63.1260(f), if the owner or operator will comply with the recordkeeping and reporting authority under 40 CFR parts 264 and/or 265.
(h)
(1) For equipment leaks and wastewater emissions that normally are controlled by the CCCD, if any, the owner or operator must continue to comply with the requirements in §§ 63.1255(b)(4)(ii) and 63.1256(h), respectively, using other control devices during the planned routine maintenance period for the CCCD.
(2) During the planned routine maintenance period, the owner or operator must route emissions from process vents with organic HAP emissions greater than 15 pounds per day (lb/day) through a closed-vent system to a condenser that meets the conditions specified in paragraphs (h)(2)(i) through (iii) of this section.
(i) The outlet gas temperature must be less than −50°C (−58°F) when the emission stream contains organic HAP with a partial pressure greater than 20 kPa (2.9 psia).
(ii) The outlet gas temperature must be less than −5°C (23°F) when the emission stream contains organic HAP with a partial pressure less than or equal to 20 kPa (2.9 psia).
(iii) The HAP partial pressures in paragraphs (h)(2)(i) and (ii) of this section must be determined at 25°C.
(3) The owner or operator must route HCl emissions from process vents with HCl emissions greater than 15 lb/day through a closed-vent system to a caustic scrubber, and the pH of the scrubber effluent must be maintained at or above 9.
(4) For the purposes of the emission calculations required in paragraphs (h)(2) and (3) of this section, the term “process vent” shall mean each vent from a unit operation. The emission calculation shall not be performed on the aggregated emission stream from multiple unit operations that are manifolded together into a common header. Once an affected process vent has been controlled in accordance with this section, it is no longer subject to the requirements of this section or § 63.1254 during the routine maintenance period.
(5) The total period of planned routine maintenance, during which non-dedicated PMPU's that are normally controlled by the CCCD continue to operate, and process vent emissions are controlled as specified in paragraphs (h)(2) and (3) of this section, must not exceed 240 hours in any 365-day period.
(6) While being controlled as specified in paragraphs (h)(2) and (3) of this section, the process vents may not be used in emissions averaging.
The revisions and additions read as follows:
(b) * * *
(2) Reduces emissions to outlet concentrations less than or equal to 20 ppmv as TOC and less than or equal to 20 ppmv as hydrogen halides and halogens;
(c) * * *
(2) Reduces emissions to outlet concentrations less than or equal to 20 ppmv as TOC and less than or equal to 20 ppmv as hydrogen halides and halogens;STARS>
(e) * * * Periods of planned routine maintenance of the control devices (including CCCD subject to § 63.1252(h)), during which the control device does not meet the specifications of paragraphs (b) through (d) of this section, as applicable, shall not exceed 240 hours in any 365-day period.
(a) * * *
(4)
(i) Shutdown the affected process.
(ii) Comply with the requirements of paragraphs (a)(1) through (3) of this section by using other means.
(iii) For a non-dedicated PMPU, implement the procedures described in paragraphs (a)(4)(iii)(A) through (C) of this section for those process vents that are normally controlled by the CCCD. This option is not available for process vents from dedicated PMPU's.
(A) If the owner or operator uses a CCCD to comply with the 93 percent reduction requirement in paragraph (a)(1)(i) or (ii) of this section, the outlet concentration limit in paragraph (a)(1)(ii)(A) of this section, the alternative standard as specified in paragraphs (a)(1)(ii)(D) and (c) of this section, or the annual mass limit in paragraph (a)(2) of this section, implement the provisions in § 63.1252(h) during planned routine maintenance of the CCCD.
(B) If the owner or operator reduces HAP emissions from process vents by using a CCCD that is also a control device specified in § 63.1257(a)(4), implement the provisions in § 63.1252(h) during planned routine maintenance of the CCCD.
(C) If the owner or operator uses a CCCD to reduce emissions from a process vent subject to paragraph (a)(3) of this section, implement the planned routine maintenance provisions in § 63.1252(h) for that vent only if the reason the planned routine maintenance is needed, and the reason it cannot be performed at a time when the vent subject to paragraph (a)(3) of this section is not operating, has been described in the Notification of Compliance Status Report or a periodic report submitted before the planned routine maintenance event.
The revisions and additions read as follows:
(a) * * *
(4) * * *
(ii) * * *
(C) The requirements apply at all times, except as specified in § 63.1250(g). The owner or operator may not comply with the planned routine maintenance provisions in § 63.1252(h).
(iii) * * *
(D) Except as provided in paragraph (b)(4)(iii)(B) of this section, if leaking connectors comprise at least 0.5 percent but less than 1.0 percent of the connectors during the last monitoring period, the owner or operator shall monitor at least once every 2 years for the next monitoring period. At the end of that 2-year monitoring period, if the percent leaking connectors is greater than or equal to 0.5 percent, the owner or operator shall monitor once per year until the percent leaking connectors is less than 0.5 percent. If, at the end of a monitoring period, the percent leaking connectors is less than 0.5 percent, the owner or operator shall monitor in accordance with paragraph (b)(4)(iii)(C) or (F) of this section, as appropriate.
(c) * * *
(2) * * *
(iii)
(A) The owner or operator shall monitor the pump or agitator by the method specified in § 63.180(b). If the instrument reading indicates a leak as specified in paragraph (c)(2)(ii) of this section, a leak is detected.
(B) The owner or operator shall eliminate the visual indications of liquids dripping.
(3) * * *
(i) When a leak is detected pursuant to paragraph (c)(2)(i), (c)(2)(iii)(A),
(4) * * *
(ii) If, calculated on a 1-year rolling average, the greater of either 10 percent or three of the pumps in a group of processes leak, the owner or operator shall monitor each pump once per month, until the calculated 1-year rolling average value drops below 10 percent or three pumps, as applicable.
(5) * * *
(iv) Each pump/agitator is checked by visual inspection each calendar week for indications of liquids dripping from the pump/agitator seal. If there are indications of liquids dripping from the pump or agitator seal at the time of the weekly inspection, the owner or operator shall follow the procedures specified in either paragraph (c)(5)(iv)(A) or (B) of this section prior to the next required inspection.
(A) The owner or operator shall monitor the pump or agitator using the method specified in § 63.180(b) to determine if there is a leak of organic HAP in the barrier fluid. If the instrument reading indicates a leak, as specified in paragraph (c)(2)(ii) of this section, a leak is detected.
(B) The owner or operator shall eliminate the visual indications of liquids dripping.
(vii) When a leak is detected pursuant to paragraph (c)(5)(iv)(A) or (B) of this section, the leak must be repaired as specified in paragraph (c)(3) of this section.
(e) * * *
(7) * * *
(iii) * * * The monitoring required by this paragraph is in addition to the monitoring required to satisfy the definitions of “repaired” and “first attempt at repair.”
(9) * * * Instead, the owner or operator shall monitor each valve in organic HAP service for leaks once each quarter, or comply with paragraph (e)(4)(iii), (iv), or (v) of this section, except as provided in paragraph (f) of this section.
(h) * * *
(1) * * *
(ii) Periodic reports described in paragraph (h)(3) of this section.
(3) * * *
(i) A report containing the information in paragraphs (h)(3)(ii), (iii), and (iv) of this section shall be submitted semiannually. The first report shall be submitted no later than 240 days after the Notification of Compliance Status Report is due and shall cover the 6-month period beginning on the date the Notification of Compliance Status Report is due. Each subsequent report shall cover the 6-month period following the preceding period.
The revisions and additions read as follows:
(e) * * *
(4) * * *
(iii) The owner or operator shall operate and maintain sewer lines as specified in paragraphs (e)(4)(iii)(A) and (B) of this section.
(A) Except as specified in paragraph (e)(4)(iii)(B) of this section, each sewer line shall not be open to the atmosphere and shall be covered or enclosed in a manner so as to have no visible gaps or cracks in joints, seals, or other emission interfaces.
This provision applies to sewers located inside and outside of buildings.
(B) A sewer line connected to drains that are in compliance with paragraph (e)(4)(i) of this section may be vented to the atmosphere, provided that the sewer line entrance to the first downstream junction box is water sealed and the sewer line vent pipe is designed as specified in paragraph (e)(4)(ii)(B)(
(g) * * *
(9) * * *
(ii)
(10)
(h) For each control device or combination of control devices used to comply with the provisions in paragraphs (b) through (f) and (g)(5) of this section, the owner or operator shall operate and maintain the control device or combination of control devices in accordance with the requirements of paragraphs (h)(1) through (5) of this section.
(5) The provisions in paragraphs (h)(1) through (4) of this section apply at all times, except as specified in § 63.1250(g). The owner or operator may not comply with the planned routine maintenance provisions in § 63.1252(h) for vent streams from waste management units.
The revisions and additions read as follows:
(a) * * *
(6) * * * The owner or operator shall comply with the monitoring provisions in § 63.1258(b)(1) through (4) on the initial compliance date.
(b) * * *
(10) * * *
(ii)
(c) * * *
(1)
(d) * * *
(1) * * *
(i) * * * Controlled emissions during periods of planned routine maintenance of a CCCD as specified in § 63.1252(h), must be calculated assuming the HAP emissions are reduced by 93 percent.
(2) * * *
(i) * * *
(D) * * *
(
(E) * * * The individual HAP partial pressures may be calculated using Raoult's Law. * * *
The revisions and additions read as follows:
(b) * * *
(3)
(5) * * *
(i) * * *
(A) A TOC monitor meeting the requirements of EPA Performance Specification 8, 9, or 15 of appendix B of 40 CFR part 60 shall be installed, calibrated, and maintained according to § 63.8.
(ii) * * *
(A) * * *
(
(8) * * *
(iii) Except as provided in paragraph (b)(8)(iv) of this section, exceedances of the 20 or 50 ppmv TOC outlet emission limit, averaged over the operating day, will result in no more than one violation per day per control device. Except as provided in paragraph (b)(8)(iv) of this section, exceedances of the 20 or 50 ppmv hydrogen halide or halogen outlet emission limit, averaged over the operating day, will result in no more than one violation per day per control device.
(c) * * * During periods of planned routine maintenance when emissions are controlled as specified in § 63.1252(h), the owner or operator must calculate controlled emissions assuming the HAP emissions are reduced by 93 percent. * * *
(h) * * *
(10) Instead of complying with the provisions of paragraphs (h)(2) through (8) of this section, an owner or operator may design a closed-vent system to operate at a pressure below atmospheric pressure. The system shall be equipped with at least one pressure gauge or other pressure measurement device that can be read from a readily accessible location to verify that negative pressure is being maintained in the closed-vent system when the associated control device is operating.
(i)
(a) * * *
(3) * * *
(iii) For each startup, shutdown, or malfunction, the owner or operator shall record all information necessary to demonstrate that the procedures specified in the affected source's startup, shutdown, and malfunction plan were followed, as specified in § 63.6(e)(3)(iii); alternatively, the owner or operator shall record any actions taken that are not consistent with the plan, as specified in § 63.6(e)(3)(iv).
(b) * * *
(5) * * *
(i) For processes that are in compliance with the percent reduction requirements of § 63.1254(a)(1) or (b)(1) and that contain vents controlled to less than the percent reduction requirement, the records specified in paragraphs (b)(5)(i)(A) through (C) of this section are required.
(ii) * * *
(D) Actual controlled emissions for each batch operated during periods of planned routine maintenance of a CCCD, calculated according to § 63.1258(c).
(8) A schedule or log of each operating scenario updated daily or, at a minimum, each time a different operating scenario is put into operation.
(10) Periods of planned routine maintenance as described in §§ 63.1252(h) and 63.1257(c)(5).
(13) All maintenance performed on the air pollution control equipment.
(i) * * *
(7) * * *
(i) Identification of the leaking equipment.
(ii) The instrument identification numbers and operator name or initials, if the leak was detected using the procedures described in § 63.1258(h)(3); or a record that the leak was detected by sensory observations.
The revisions and additions read as follows:
(f) * * *
(7) Anticipated periods of planned routine maintenance of a CCCD subject to § 63.1252(h) during the period between the compliance date and the end of the period covered by the first Periodic report, and if applicable, the rationale for why the planned routine maintenance must be performed while a process with a vent subject to § 63.1254(a)(3) will be operating.
(g) * * *
(1)
(2) * * *
(vi) The information specified in paragraphs (g)(2)(vi)(A) through (C) for periods of planned routine maintenance.
(A) For each storage tank subject to control requirements, periods of planned routine maintenance during which the control device does not meet the specifications of § 63.1253(b) through (d).
(B) For a CCCD subject to § 63.1252(h), periods of planned routine maintenance during the current reporting period and anticipated periods of planned routine maintenance during the next reporting period.
(C) Rationale for why planned routine maintenance of a CCCD subject to § 63.1252(h) must be performed while a process with a vent subject to § 63.1254(a)(3) will be operating, if applicable. This requirement applies only if the rationale is not in, or differs from that in, the Notification of Compliance Status report.
(vii) * * * For the initial Periodic report, each operating scenario for each process operated since the due date of the Notification of Compliance Status Report shall be submitted.
(h) * * *
(1) Except as specified in paragraph (h)(2) of this section, whenever a process change is made, or a change in any of the information submitted in the Notification of Compliance Status Report, the owner or operator shall submit the information specified in paragraphs (h)(1)(i) through (iv) of this section with the next Periodic report required under paragraph (g) of this section.
(i)
(1) If actions taken by an owner or operator during a startup, shutdown, or malfunction of an affected source (including actions to correct a malfunction) are consistent with the procedures specified in the source's startup, shutdown, and malfunction plan, the owner or operator shall state this fact in a startup, shutdown, or malfunction report. The report shall also include the information specified in § 63.1259(a)(3)(i) and (ii) and shall contain the name, title, and signature of the owner or operator or other responsible official who is certifying its accuracy. For the purposes of this subpart, the startup, shutdown, and malfunction reports shall be submitted on the same schedule as the periodic reports required under paragraph (g) of this section instead of the schedule specified in § 63.10(d)(5)(i). Reports are only required if a startup, shutdown, or malfunction occurred during the reporting period.
(2) Any time an owner or operator takes an action that is not consistent
The revisions and additions read as follows:
Environmental Protection Agency (EPA).
Final rule.
EPA is approving revisions to the Florida State Implementation Plan (SIP) submitted on December 10, 1999, by the State of Florida through the Florida Department of Environmental Protection (FDEP). This submittal consists of revisions to the ozone air quality maintenance plans for the Jacksonville (Duval County) and Southeast Florida (Broward, Dade, and Palm Beach Counties) areas to remove the emission reduction credits attributable to the Motor Vehicle Inspection Program (MVIP) from the future year emission projections contained in those plans. Florida submitted technical amendments to this revision on January 18, 2000. This revision updates the control strategy by removing emissions credit for the MVIP, and as such, transportation conformity must be redetermined by the Metropolitan Planning Organizations (MPOs) within 18 months of the final approval of this notice. EPA proposed approval of this revision to the Florida SIP on March 17, 2000.
This rule will be effective September 4, 2001.
Materials relevant to this rulemaking are contained in Docket No. FL83-200101. The docket is available at the following address for inspection during normal business hours: Environmental Protection Agency, Atlanta Federal Center, Region 4 Air Planning Branch, 61 Forsyth Street S.W., Atlanta, Georgia 30303-3104.
Joey LeVasseur at 404/562-9035 (E-mail:
The following sections: Background, Response to Comments, and Final Action, provide additional information concerning the revisions to the ozone air quality maintenance plans for the Jacksonville and Southeast Florida areas to remove the emission reduction credits attributable to the MVIP from the future year emission projections contained in those plans.
Today's action finalizes EPA's approval of the maintenance plan revisions submitted on December 10, 1999. A detailed description of Florida's submittal may be found in the Notice of Proposed Rulemaking for today's action, which was published in the
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The nature and status of FDEP's proposal, and of EPA's notice of proposed rulemaking, are fundamentally ambiguous so that it is impossible to comment meaningfully on the proposal at this time. Thus, any further EPA action on FDEP's proposal would constitute a violation of the Administrative Procedure Act, 5 U.S.C. sections 551-559.
Under the terms of section 175A of the Clean Air Act (CAA), maintenance plans may be revised only once, 8 years after redesignation and, even if “interim” modifications were permitted, the request must address projected emissions that occur over a 10 year time frame, commencing from the year of modification of the plan. FDEP must therefore demonstrate attainment of the relevant ozone standard through 2010-11, not merely 2005.
Trends in ozone design values in Southeast Florida and Duval County indicate that the MVIP remains critical to the maintenance of attainment status in those areas. In this regard, despite reductions in volatile organic compounds (VOC) and nitrogen oxides ( NO
FDEP's proposal fails to meet the requirements of CAA section 175A, which require that the MVIP be included in the maintenance plans as a fully qualified, legislatively authorized, contingency measure.
Without the MVIP, Southeast Florida and Duval County will likely be unable to make the transportation conformity demonstrations required by the CAA, and FDEP has failed to address this key concern in any meaningful manner.”
As a general policy, a state may not relax the adopted and implemented SIP upon the area's redesignation to attainment. States should continue to implement existing control strategies in order to maintain the standard. However, section 175A recognizes that States may be able to move SIP measures to the contingency plan upon redesignation if the state can adequately demonstrate that such action will not interfere with maintenance of the standard.
The requirement for a second 10-year plan does not prohibit revisions to the existing 10-year maintenance plan. A revision to the existing 10-year maintenance plan prior to the required extension does not require the plan to be extended for another 10 years.
Ozone trends are not at issue in this revision. There is no requirement that ozone concentrations cannot increase from one year to another, as long as there is not a violation of the one-hour ozone NAAQS.
In this revision, Florida demonstrates that the area can maintain the one-hour ozone NAAQS without the implementation of the MVIP. The EPA has reviewed the State's emissions inventory and modeling analyses and finds that they meet applicable guidance and requirements. Therefore, the State has made the necessary demonstration that the MVIP is not necessary to maintain the one-hour ozone NAAQS and that attainment of the NAAQS for any other pollutant will not be affected by removing the MVIP from the SIP. In accordance with EPA's November 15, 1992, policy, the State must include the MVIP as a contingency measure in the maintenance plan for the redesignated area, which it has done.
Florida does not in this revision to the maintenance plan need to address the transportation conformity determination issue. This revision only removes the emission reduction credits attributable to the MVIP from the maintenance plan. Florida currently has a transportation conformity plan in place, but will need to perform another transportation conformity determination within 18 months of this final action, due to the revision to the emissions budgets.
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EPA is approving the aforementioned revisions to the Florida SIP because they are consistent with CAA and EPA requirements.
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. This action merely approves state law as meeting federal requirements and imposes no additional requirements
In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the Executive Order. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The Congressional Review Act, 5 U.S.C. section 801
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 1, 2001. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)
Environmental protection, Air pollution control, Carbon monoxide, Hydrocarbons, Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements.
42 U.S.C. 7401
(e) EPA-approved Florida non-regulatory provisions.
Environmental Protection Agency (EPA).
Final rule; technical correction.
EPA issued a final rule in the
This technical correction is effective August 2, 2001.
Comments may be submitted by mail, electronically, or in person. Please follow the detailed instructions for each method as provided in Unit II. of the
By mail: Vera Soltero, Registration Division (7505C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: (703) 308-9359; e-mail address: soltero.vera@epa.gov.
You may be affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected categories and entities may include, but are not limited to:
This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in the table could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether or not this action might apply to certain entities. If you have questions regarding the applicability of this action to a particular entity, consult the person listed under
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In the
Time-limited tolerances for isoxadifen-ethyl on various rice commodities were established in the
Section 553 of the Administrative Procedure Act (APA), 5 U.S.C. 553(b)(B), provides that, when an Agency for good cause finds that notice and public procedure are impracticable, unnecessary or contrary to the public interest, the Agency may issue a rule without providing notice and an opportunity for public comment. EPA has determine that there is good cause for making today's rule final without prior proposal and opportunity of comment, because EPA is amending the tolerance expression to include the language (pounds safener per acre) that was previously used in the notice of filing.
This final rule implements a technical correction to the Code of Federal Regulations, and it does not otherwise impose or amend any requirements. As such, the Office of Management and Budget (OMB) has determined that a technical correction is not a “significant regulatory action” subject to review by OMB under Executive Order 12866, entitled
Because this action is not economically significant as defined by section 3(f) of Executive Order 12866, this action is not subject to Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997). This action will not
Since the Agency has made a “good cause” finding that this action is not subject to notice-and-comment requirements under the APA or any other statute (see Unit IV.), this action is not subject to provisions of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.), or to sections 202 and 205 of the Unfunded Mandates Reform Act of 1995 (UMRA) (Public Law 104-4). In addition, this action does not significantly or uniquely affect small governments or impose a significant intergovernmental mandate, as described in sections 203 and 204 of UMRA.
This final rule will not have substantial direct effects on the States or on one or more Indian tribes, on the relationship between the national government and the States or one or more Indian tribes, or on the distribution of power and responsibilities among the various levels of government or between the Federal government and Indian tribes. As such, this action does not have any “ tribal implications” as described in Executive Order 13175, entitled
This action does not involve any technical standards that require the Agency's consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note). In issuing this final rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct, as required by section 3 of Executive Order 12988, entitled
EPA has complied with Executive Order 12630, entitled
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the Agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and record keeping requirements.
21 U.S.C. 321(q), 346a, 371.
(a)
Environmental Protection Agency (EPA).
Final rule.
This regulation establishes a tolerance for combined residues of tepraloxydim (2-[1-[[[(2E)-3-chloro-2-propenyl]oxy]imino]propyl]-3-hydroxy-5-(tetrahydro-2H-pyran-4-yl)-cyclohexene-1-one) and its metabolites convertible to GP (3- (tetrahydropyran-4-yl)pentane-1,5-dioic acid) and OH-GP (3-hydroxy-3-(tetrahydropyran-4-yl)pentane-1,5-dioic acid), calculated as tepraloxydim, in or on canola, seed;
This regulation is effective August 2, 2001. Objections and requests for hearings, identified by docket control number OPP-301148, must be received by EPA on or before October 1, 2001.
Written objections and hearing requests may be submitted by mail, in person, or by courier. Please follow the detailed instructions for each method as provided in Unit VI. of the
By mail: Jim Tompkins, Registration Division (7505C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW.,Washington, DC 20460; telephone number: (703) 305-5697 ; and e-mail address: tompkins.jim@epa.gov.
You may be affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected categories and entities may include, but are not limited to:
This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in the table could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether or not this action might apply to certain entities. If you have questions regarding the applicability of this action to a particular entity, consult the person listed under
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In the
The petition requested that 40 CFR part 180 be amended by establishing a tolerance for combined residues of the herbicide tepraloxydim, (2-[1-[[[(2E)-3-chloro-2-propenyl]oxy]imino]propyl]-3-hydroxy-5-(tetrahydro-2H-pyran-4-yl)-cyclohexene-1-one) and its metabolites convertible to GP (3-(tetrahydropyran-4-yl)pentane-1,5-dioic acid) and OH-GP (3-hydroxy-3-(tetrahydropyran-4-yl)pentane-1,5-dioic acid) (calculated as the herbicide) in or on the raw agricultural commodities cotton, seed at 0.2 part per million (ppm); cotton meal at 0.2 ppm, cotton gin trash at 3.0 ppm; soybean seed at 5.0 ppm; soybean hulls, poultry meat and fat at 0.5 ppm; and poultry, liver at 1.0 ppm; and eggs at 0.2 ppm.
During the course of the review, the Agency determined that the available data support the following tolerances: tepraloxydim (2-[1-[[[(2E)-3-chloro-2-propenyl]oxy]imino]propyl]-3-hydroxy-5-(tetrahydro-2H-pyran-4-yl)-cyclohexene-1-one) and its metabolites convertible to GP (3-(tetrahydropyran-4-yl)pentane-1,5-dioic acid) and OH-GP (3-hydroxy-3-(tetrahydropyran-4-yl)pentane-1,5-dioic acid), calculated as tepraloxydim, in or on cotton, undelinted seed at 0.2 ppm; cotton, gin byproducts at 3.0 ppm; soybean, seed at 6.0 ppm; soybean, hulls at 8.0 ppm; and soybean, aspirated grain fractions at 1200 ppm; and the combined residues of tepraloxydim and its metabolites convertible to GP, OH-GP, and GL (3-(2-oxotetrahydropyran-4-yl)pentane-1,5-dioic acid), calculated as tepraloxydim, in or on milk at 0.1 ppm; meat of cattle, goats, hogs, horses, and sheep at 0.2 ppm; meat byproduct (except kidney) of cattle, goats, hogs, horses, and sheep at 0.2 ppm; kidney of cattle, goats, hogs, horses, and sheep at 0.5 ppm; fat of cattle, goats, hogs, horses, and sheep at 0.15 ppm; poultry, meat at 0.2 ppm; poultry, meat byproducts (except liver)
Section 408(b)(2)(A)(i) of the FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) defines “safe” to mean that“ there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue....”
EPA performs a number of analyses to determine the risks from aggregate exposure to pesticide residues. For further discussion of the regulatory requirements of section 408 and a complete description of the risk assessment process, see the final rule on Bifenthrin Pesticide Tolerances (62 FR 62961, November 26, 1997) (FRL-5754-7).
Consistent with section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure, consistent with section 408(b)(2), for a tolerance[s] for the combined residues of tepraloxydim (2-[1-[[[(2E)-3-chloro-2- propenyl]oxy]imino]propyl]-3-hydroxy-5-(tetrahydro-2H-pyran-4-yl)-cyclohexene-1-one) and its metabolites convertible to GP (3-(tetrahydropyran-4-yl)pentane-1,5-dioic acid) and OH-GP (3-hydroxy-3-(tetrahydropyran-4-yl)pentane-1,5-dioic acid), calculated as tepraloxydim, in or on cotton, undelinted seed at 0.2 ppm; cotton, gin byproducts at 3.0 ppm; soybean, seed at 6.0 ppm; soybean, hulls at 8.0 ppm; soybean, aspirated grain fractions at 1200 ppm; and the combined residues of tepraloxydim and its metabolites convertible to GP, OH-GP, and GL (3-(2-oxotetrahydropyran-4-yl)pentane-1,5- dioic acid), calculated as tepraloxydim, in or on milk at 0.1 ppm; meat of cattle, goats, hogs, horses, and sheep at 0.2 ppm; meat byproduct (except kidney) of cattle, goats, hogs, horses, and sheep at 0.2 ppm; kidney of cattle, goats, hogs, horses, and sheep at 0.5 ppm; fat of cattle, goats, hogs, horses, and sheep at 0.15 ppm; poultry, meat at 0.2 ppm; poultry, meat byproducts (except liver) at 0.2 ppm; poultry, fat at 0.3 ppm; poultry, liver at 1.0 ppm; and eggs at 0.20 ppm; and a tolerance with regional registration, as defined in § 180.1(n) for the combined residues of tepraloxydim and its metabolites convertible to GP and OH-GP, calculated as tepraloxydim, in or on the raw agricultural commodity canola, seed at 0.5 ppm. EPA's assessment of exposures and risks associated with establishing the tolerance follows.
EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. The nature of the toxic effects caused by tepraloxydim are discussed in the following Table 1 as well as the no observed adverse effect level (NOAEL) and the lowest observed adverse effect level (LOAEL) from the toxicity studies reviewed.
The dose at which no adverse effects are observed (the NOAEL) from the toxicology study identified as appropriate for use in risk assessment is used to estimate the toxicological level of concern (LOC). However, the lowest dose at which adverse effects of concern are identified (the LOAEL) is sometimes used for risk assessment if no NOAEL was achieved in the toxicology study
For dietary risk assessment (other than cancer) the Agency uses the UF to calculate an acute or chronic reference dose (acute RfD or chronic RfD) where the RfD is equal to the NOAEL divided by the appropriate UF (RfD = NOAEL/UF). Where an additional safety factor is retained due to concerns unique to the FQPA, this additional factor is applied to the RfD by dividing the RfD by such additional factor. The acute or chronic Population Adjusted Dose (aPAD or cPAD) is a modification of the RfD to accommodate this type of FQPA Safety Factor.
For non-dietary risk assessments (other than cancer) the UF is used to determine the LOC. For example, when 100 is the appropriate UF (10X to account for interspecies differences and 10X for intraspecies differences) the LOC is 100. To estimate risk, a ratio of the NOAEL to exposures (margin of exposure (MOE) = NOAEL/exposure) is calculated and compared to the LOC.
The linear default risk methodology (Q*) is the primary method currently used by the Agency to quantify carcinogenic risk. The Q* approach assumes that any amount of exposure will lead to some degree of cancer risk. A Q* is calculated and used to estimate risk which represents a probability of occurrence of additional cancer cases (e.g., risk is expressed as 1 x 10
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In conducting this acute dietary risk assessment, the Agency has made highly conservative assumptions. Default concentration factors were used for the processed commodities. One hundred percent of the proposed crops are assumed to be treated with tepraloxydim and residues were assumed to be at tolerance levels. This is expected to result in an overestimate of dietary exposure. Therefore, this acute dietary (food only) risk assessment should be viewed as a highly conservative risk estimate. The percent aPAD that would be above EPA`s level of concern would be 100%. Percent crop treated (PCT) and/or anticipated residues were not used. A DEEM acute analysis was performed using proposed and recommended tolerance levels for the combined residues of tepraloxydim and its metabolites for females (13-50 years old). Based on the results of this analysis, exposure to tepraloxydim from food will utilize 4.4% of aPAD for females (13-50 years old), the only population subgroup of concern.
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In conducting this chronic dietary risk assessment, the Agency has made highly conservative assumptions which result in an overestimate of human dietary exposure. A DEEM chronic exposure analysis was performed using the proposed tolerance level residues and 100% of the crop treated to estimate the exposure for the general population and subgroups of interest. This is expected to result in an overestimate of dietary risk. Therefore, this chronic dietary (food only) risk assessment should be viewed as a highly conservative risk estimate. Thus, in making a safety determination for these tolerances, EPA takes into account this highly conservative exposure assessment. The Agency is generally concerned with chronic exposures that exceed 100% of the cPAD or chronic RfD. Percent crop and/or anticipated residues were not used. Based on this analysis the exposure to tepraloxydim from food will utilize 6.8% cPAD for the general population, 31% cPAD for all infants (
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The Agency uses the Generic Estimated Environmental Concentration (GENEEC) or the Pesticide Root Zone/Exposure Analysis Modeling System (PRZM/EXAMS) to estimate pesticide concentrations in surface water and SCI-GROW, which predicts pesticide concentrations in groundwater. In general, EPA will use GENEEC (a tier 1 model) before using PRZM/EXAMS (a tier 2 model) for a screening-level assessment for surface water. The GENEEC model is a subset of the PRZM/EXAMS model that uses a specific high-end runoff scenario for pesticides. GENEEC incorporates a farm pond scenario, while PRZM/EXAMS incorporate an index reservoir environment in place of the previous pond scenario. The PRZM/EXAMS model includes a percent crop area factor as an adjustment to account for the maximum percent crop coverage within a watershed or drainage basin.
None of these models include consideration of the impact processing (mixing, dilution, or treatment) of raw water for distribution as drinking water would likely have on the removal of pesticides from the source water. The primary use of these models by the Agency at this stage is to provide a coarse screen for sorting out pesticides for which it is highly unlikely that drinking water concentrations would ever exceed human health levels of concern.
Since the models used are considered to be screening tools in the risk assessment process, the Agency does not use estimated environmental concentrations (EECs) from these models to quantify drinking water exposure and risk as a %RfD or %PAD. Instead, drinking water levels of
Based on the GENEEC and SCI-GROW models the EECs of tepraloxydim for acute exposures are estimated to be 17.6 μg/L for surface water and 0.0015 μg/L parts per billion (ppb) for groundwater. EECs for chronic exposures are estimated to be 10.3 μg/L ppb for surface water and 0.0015 μg/L ppb for ground water.
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Tepraloxydim is not registered for use on any sites that would result in residential exposure.
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EPA does not have, at this time, available data to determine whether tepraloxydim has a common mechanism of toxicity with other substances or how to include this pesticide in a cumulative risk assessment. Unlike other pesticides for which EPA has followed a cumulative risk approach based on a common mechanism of toxicity, tepraloxydim does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has not assumed that tepraloxydim has a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see the final rule for Bifenthrin Pesticide Tolerances (62 FR 62961, November 26, 1997).
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The FQPA safety factor for tepraloxydim is applicable to only Females 13-50 years population subgroup for acute dietary risk assessment (there are currently no residential exposure scenarios), since there is concern for increased susceptibility of the young demonstrated in the prenatal developmental study in rats. The developmental effects are presumed to occur following a single exposure of females of child-bearing age and, therefore, are appropriate for risk assessment for females aged 13-50 years old.
To estimate total aggregate exposure to a pesticide from food, drinking water, and residential uses, the Agency calculates DWLOCs which are used as a point of comparison against the model estimates of a pesticide's concentration in water (EECs). DWLOC values are not regulatory standards for drinking water. DWLOCs are theoretical upper limits on a pesticide's concentration in drinking water in light of total aggregate exposure to a pesticide in food and residential uses. In calculating a DWLOC, the Agency determines how much of the acceptable exposure (i.e., the PAD) is available for exposure through drinking water e.g., allowable chronic water exposure (mg/kg/day) = cPAD - (average food + residential exposure). This allowable exposure through drinking water is used to calculate a DWLOC.
A DWLOC will vary depending on the toxic endpoint, drinking water consumption, and body weights. Default body weights and consumption values as used by the USEPA Office of Water are used to calculate DWLOCs: 2L/70 kg (adult male), 2L/60 kg (adult female), and 1L/10 kg (child). Default body weights and drinking water consumption values vary on an individual basis. This variation will be taken into account in more refined screening-level and quantitative
When EECs for surface water and groundwater are less than the calculated DWLOCs, the Office of Pesticide Programs concludes with reasonable certainty that exposures to the pesticide in drinking water (when considered along with other sources of exposure for which OPP has reliable data) would not result in unacceptable levels of aggregate human health risk at this time. Because OPP considers the aggregate risk resulting from multiple exposure pathways associated with a pesticide's uses, levels of comparison in drinking water may vary as those uses change. If new uses are added in the future, OPP will reassess the potential impacts of residues of the pesticide in drinking water as a part of the aggregate risk assessment process.
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Tepraloxydim is not registered for use on any sites that would result in residential exposure. Therefore, the aggregate risk is the sum of the risk from food and water, which do not exceed the Agency's level of concern.
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Tepraloxydim is not registered for use on any sites that would result in residential exposure. Therefore, the aggregate risk is the sum of the risk from food and water, which do not exceed the Agency's level of concern.
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Analytical methods (gas chromotography (GC/MS (selected ion monitoring)) have been proposed as analytical enforcement methods by the petitioner for raw agricultural, processed, and livestock commodities. These methods have been validated by the petitioner for gathering residue data. The initial raw agricultural commodity method has a longer completion time than currently permitted by current EPA Guidelines. A shorter, improved method for agricultural commodities and the
There are no Codex, Canadian, or Mexican maximum residue limits (MRLs) established for tepraloxydim. Harmonization is not an issue at this time.
The following are conditions of registration.
1. Successful completion of method trials for the proposed analytical enforcement methods.
2. A regional registration for canola in the states of Minnesota, Montana, North Dakota, and South Dakota.
3. Submission of additional storage stability data are needed to support the ruminant feeding study (samples stored for 217-337 days) and Agency review of storage stability data currently under review.
4. Submission of a developmental neurotoxicity study.
5. Submission of a 28-day inhalation toxicity study.
Therefore, the tolerance is established for combined residues of tepraloxydim (2-[1-[[[(2E)-3-chloro-2-propenyl]oxy]imino]propyl]-3-hydroxy-5-(tetrahydro-2H-pyran-4-yl)-cyclohexene-1-one) and its metabolites convertible to GP (3-(tetrahydropyran-4-yl)pentane-1,5-dioic acid) and OH-GP (3-hydroxy-3- (tetrahydropyran-4-yl)pentane-1,5-dioic acid), calculated as tepraloxydim, in or on cotton, undelinted seed at 0.2 ppm; cotton, gin byproducts at 3.0 ppm; soybean, seed at 6.0 ppm; soybean, hulls at 8.0 ppm; soybean, aspirated grain fractions at 1,200 ppm; and the combined residues of tepraloxydim and its metabolites convertible to GP, OH-GP, and GL (3-(2-oxotetrahydropyran-4-yl)pentane-1,5-dioic acid), calculated as tepraloxydim, in or on milk at 0.1 ppm; meat of cattle, goats, hogs, horses, and sheep at 0.2 ppm; meat byproduct (except kidney) of cattle, goats, hogs, horses, and sheep at 0.2 ppm; kidney of cattle, goats, hogs, horses, and sheep at 0.5 ppm; fat of cattle, goats, hogs, horses, and sheep at 0.15 ppm; poultry, meat at 0.2 ppm; poultry, meat byproducts (except liver) at 0.2 ppm; poultry, fat at 0.3 ppm; poultry, liver at 1.0 ppm; and eggs at 0.20 ppm; and a tolerance with regional registration, as defined in § 180.1 (n) for the combined residues of tepraloxydim and its metabolites convertible to GP and OH-GP, calculated as tepraloxydim, in or on the raw agricultural commodity canola, seed at 0.5 ppm.
Under section 408(g) of the FFDCA, as amended by the FQPA, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. The EPA procedural regulations which govern the submission of objections and requests for hearings appear in 40 CFR part 178. Although the procedures in those regulations require some modification to reflect the amendments made to the FFDCA by the FQPA of 1996, EPA will continue to use those procedures, with appropriate adjustments, until the necessary modifications can be made. The new section 408(g) provides essentially the same process for persons to “object” to a regulation for an exemption from the requirement of a tolerance issued by EPA under new section 408(d), as was provided in the old FFDCA sections 408 and 409. However, the period for filing objections is now 60 days, rather than 30 days.
You must file your objection or request a hearing on this regulation in accordance with the instructions provided in this unit and in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket control number OPP-301148 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk on or before October 1, 2001.
1.
Mail your written request to: Office of the Hearing Clerk (1900), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460. You may also deliver your request to the Office of the Hearing Clerk in Rm. C400, Waterside Mall, 401 M St., SW., Washington, DC 20460. The Office of the Hearing Clerk is open from 8 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Office of the Hearing Clerk is (202) 260-4865.
2.
EPA is authorized to waive any fee requirement “when in the judgement of the Administrator such a waiver or refund is equitable and not contrary to the purpose of this subsection.” For additional information regarding the waiver of these fees, you may contact James Tompkins by phone at (703) 305-5697, by e-mail at tompkins.jim@epa.gov, or by mailing a request for information to Mr. Tompkins at Registration Division (7505C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460.
If you would like to request a waiver of the tolerance objection fees, you must mail your request for such a waiver to: James Hollins, Information Resources and Services Division (7502C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460.
3.
A request for a hearing will be granted if the Administrator determines that the material submitted shows the following: There is a genuine and substantial issue of fact; there is a reasonable possibility that available evidence identified by the requestor would, if established resolve one or more of such issues in favor of the requestor, taking into account uncontested claims or facts to the contrary; and resolution of the factual issue(s) in the manner sought by the requestor would be adequate to justify the action requested (40 CFR 178.32).
This final rule establishes a tolerance under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled
The Congressional Review Act, 5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
21 U.S.C. 321(q), 346(a) and 371.
(a)
(2) Tolerances are established for the combined residues of tepraloxydim and its metabolites convertible to GP, OH-GP, and GL (3-(2-oxotetrahydropyran-4-yl)-1,5-dioic acid), calculated as tepraloxydim in or on the following commodities
(b)
(c)
(d)
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Adjustment of General category daily retention limit.
NMFS has determined that the Atlantic bluefin tuna (BFT) General category daily catch limit should be adjusted in order to allow for maximum utilization of the 2001 General category June through August subquota. Therefore, NMFS increases the daily retention limit from one to two large medium or giant BFT for the remainder of the June through August time-period.
Effective July 30, 2001 through August 31, 2001.
Pat Scida or Brad McHale, 978-281-9260.
Regulations implemented under the authority of the Atlantic Tunas Convention Act (16 U.S.C. 971
Under § 635.23(a)(4), NMFS may increase or decrease the daily retention limit of large medium and giant BFT over a range from zero (on RFDs) to a maximum of three per vessel to allow for maximum utilization of the quota for BFT. Based on a review of dealer reports, daily landing trends, and the availability of BFT on the fishing grounds, NMFS has determined that an increase of the daily retention limit is appropriate and necessary to allow full use of the June through August subquota while ensuring an August fishery. Therefore, NMFS adjusts the daily retention limit for the remainder of the June through August subquota time-period to two large medium or giant BFT per vessel. This adjustment does not affect the previously scheduled RFDs for August (August 11, 12, and 13), on which the daily retention in the General category will be zero, and on which General category vessels may not fish for BFT.
The intent of this adjustment is to allow for maximum utilization of the June through August subquota (specified under § 635.27(a)) by General category participants in order to help achieve optimum yield in the General category fishery, to collect a broad range of data for stock monitoring purposes, and to be consistent with the objectives of the Fishery Management Plan for Atlantic Tunas, Swordfish and Sharks.
While catch rates have been low so far this season, NMFS recognizes that they may increase. In addition, due to the temporal and geographical nature of the fishery, certain gear types and areas are more productive at various times during the fishery. In order to ensure that the June through August subquota is not filled prematurely and to ensure equitable fishing opportunities in all areas and for all gear types, NMFS has not waived the RFDs in August, which correspond to market closures in Japan, and could promote better ex-vessel prices.
This action is taken under § 635.23(a)(4) and is exempt from review under Executive Order 12866.
16 U.S.C. 971
Food and Nutrition Service, USDA.
Proposed rule.
This proposed rule would delay the implementation date of the final rule entitled Special Supplemental Nutrition Program for Women, Infants and Children (WIC): Food Delivery Systems, published in the
To be assured of consideration, written comments must be postmarked on or before September 4, 2001. Since comments are being accepted simultaneously on several separate rulemakings, commenters on this proposed rule are asked to label their comments: “Delay of Implementation Date.” Electronic transmissions of comments, including data faxes and electronic mail, will not be accepted. Any comments received on requirements or provisions contained in the final rule published on December 29, 2000, will not be considered.
Comments should be sent to Patricia N. Daniels, Director, Supplemental Food Programs Division, Food and Nutrition Service, U.S. Department of Agriculture, 3101 Park Center Drive, Room 1414, Alexandria, VA 22302. All written submissions will be available for public inspection at this address during normal business hours (8:30 a.m. to 5:00 p.m.), Mondays through Fridays.
Debra R. Whitford, Chief, Policy and Program Development Branch, at the above address or by telephone to (703) 305-2746.
A final rule entitled Special Supplemental Nutrition Program for Women, Infants and Children (WIC): Food Delivery Systems, was published in the
In light of the noncontroversial nature and limited scope of this change, the Department limited the comment period to 30 days to provide State agencies with notification of this change as quickly as possible.
This proposed rule has been determined to be not significant for purposes of Executive Order 12866, and, therefore, has not been reviewed by the Office of Management and Budget (OMB).
This rule has been reviewed with regard to the requirements of the Regulatory Flexibility Act (5 U.S.C. 601-612). The Acting Administrator of the Food and Nutrition Service (FNS) has certified that this rule will not have a significant economic impact on a substantial number of small entities. While procedures in this rulemaking will affect State and local agencies that administer the WIC Program, any economic effect will not be significant.
Title II of the Unfunded Mandate Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, FNS generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, or tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. When such a statement is needed for a rule, section 205 of the UMRA generally requires FNS to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, more cost-effective or least burdensome alternative that achieves the objectives of the rule. This rule contains no Federal mandates (under the regulatory provisions of Title II of the UMRA) for State, local, and tribal governments or the private sector of $100 million or more in any one year. Thus, this rule is not subject to the requirements of sections 202 and 205 of the UMRA.
The WIC Program is listed in the Catalog of Federal Domestic Assistance under 10.557. For the reasons set forth
This proposed rule contains no new information collection requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3507). The existing recordkeeping and reporting requirements, which were approved by OMB under control number 0584-0045, will not change as a result of this rule.
This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. This proposed rule is intended to have preemptive effect with respect to any State or local laws, regulations, or policies which conflict with its provisions or which would otherwise impede its full implementation. This rule is not intended to have retroactive effect unless so specified in the
Administrative practice and procedure, Civil rights, Food assistance programs, Food and Nutrition Service, Food donations, Grant programs—health, Grant programs—social programs, Indians, Infants and children, Maternal and child health, Nutrition, Nutrition education, Penalties, Reporting and recordkeeping requirements, Public assistance programs, WIC, Women.
Agricultural Marketing Service, USDA.
Proposed rule.
This rule would increase the assessment rate established for the Colorado Potato Administrative Committee, Area II (Committee) for the 2001-02 and subsequent fiscal periods from $0.0015 to $0.0035 per hundredweight of potatoes handled. The Committee locally administers the marketing order, which regulates the handling of potatoes grown in Colorado. Authorization to assess potato handlers enables the Committee to incur expenses that are reasonable and necessary to administer the program. The fiscal period begins September 1 and ends August 31. The assessment rate would remain in effect indefinitely unless modified, suspended, or terminated.
Comments must be received by September 4, 2001.
Interested persons are invited to submit written comments concerning this rule. Comments must be sent to the Docket Clerk, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, room 2525-S, P.O. Box 96456, Washington, DC 20090-6456; Fax: (202) 720-8938, or E-mail: moab.docketclerk@usda.gov. Comments should reference the docket number and the date and page number of this issue of the
Dennis L. West, Northwest Marketing Field Office, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1220 SW Third Avenue, suite 385, Portland, Oregon 97204-2807; telephone: (503) 326-2724, Fax: (503) 326-7440; or George Kelhart, Technical Advisor, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, room 2525-S, P.O. Box 96456, Washington, DC 20090-6456; telephone: (202) 720-2491, Fax: (202) 720-8938.
Small businesses may request information on complying with this regulation by contacting Jay Guerber, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, room 2525-S, P.O. Box 96456, Washington, DC 20090-6456; telephone: (202) 720-2491, Fax: (202) 720-8938, or E-mail: Jay.Guerber@usda.gov.
This rule is issued under Marketing Agreement No. 97 and Order No. 948, both as amended (7 CFR part 948), regulating the handling of Irish potatoes grown in Colorado, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”
The Department of Agriculture (Department) is issuing this rule in conformance with Executive Order 12866.
This rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under the order now in effect, Colorado potato handlers are subject to assessments. Funds to administer the order are derived from such assessments. It is intended that the assessment rate as proposed herein would be applicable to all assessable potatoes beginning on September 1, 2001, and continue until amended, suspended, or terminated. This rule will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule. The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with the Secretary a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. Such handler is afforded the opportunity for a hearing on the petition. After the hearing the Secretary would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review the Secretary's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.
This rule would increase the assessment rate established for the Committee for the 2001-02 and subsequent fiscal periods from $0.0015 to $0.0035 per hundredweight of potatoes handled.
The Colorado potato order provides authority for the Committee, with the approval of the Department, to formulate an annual budget of expenses and collect assessments from handlers to administer the program. The members of the Committee are producers and handlers of Colorado Area II potatoes. They are familiar with the Committee's needs and with the costs for goods and services in their local area and are thus in a position to formulate an appropriate budget and assessment rate. The assessment rate is
For the 1998-99 and subsequent fiscal periods, the Committee recommended, and the Department approved, an assessment rate that would continue in effect from fiscal period to fiscal period unless modified, suspended, or terminated by the Secretary upon recommendation and information submitted by the Committee or other information available to the Secretary.
The Committee met on May 17, 2001, and unanimously recommended 2001-02 expenditures of $73,618 and an assessment rate of $0.0035 per hundredweight of potatoes handled. In comparison, last year's budgeted expenditures were $71,132. The assessment rate of $0.0035 is $0.002 higher than the rate currently in effect. For budget purposes, the committee projected the quantity of assessable potatoes for 2001-02 at 16,500,000 hundredweight and assessment revenue of $57,750 ($0.0035 x 16,500,000 hundredweight). The Committee recommended the increased assessment rate because the current rate of $0.0015 would not generate enough income to adequately administer the program through the 2001-02 fiscal period. The major expenditures recommended by the Committee for the 2001-02 year include $40,793 for salaries, $9,950 for office expenses, which include telephone service, supplies and postage, and $7,650 for building maintenance. Budgeted expenses for these items in 2000-01 were $39,793, $10,700, and $6,250, respectively.
The Committee developed the $0.0035 assessment rate recommendation by taking into consideration the 2001-02 budget, the estimated 2001-02 potato crop, the relatively small size of the current monetary reserve ($32,000), and other factors such as the recent attrition in farms and handlers. Although the recommended increase would more than double the current assessment rate, the Committee may need to draw up to an additional $15,868 from its reserves to meet budgeted expenses. The current reserve of approximately $32,000 is below the maximum amount authorized by the order of approximately two fiscal periods' expenses (§ 948.78). At the current rate, funds to cover anticipated expenses would not be adequate.
As mentioned earlier, based on projected shipments of 16,500,000 hundredweight, the recommended assessment rate of $0.0035 should provide $57,750 in assessment income. Income from such hander assessments, combined with interest income and funds from the Committee's authorized reserve, would be adequate to meet budgeted expenses for the 2001-02 fiscal period.
The proposed assessment rate would continue in effect indefinitely unless modified, suspended, or terminated by the Secretary upon recommendation and information submitted by the Committee or other available information.
Although this assessment rate would be in effect for an indefinite period, the Committee would continue to meet prior to or during each fiscal period to recommend a budget of expenses and consider recommendations for modification of the assessment rate. The dates and times of Committee meetings are available from the Committee or the Department. Committee meetings are open to the public and interested persons may express their views at these meetings. The Department would evaluate Committee recommendations and other available information to determine whether modification of the assessment rate is needed. Further rulemaking would be undertaken as necessary. The Committee's 2001-02 budget and those for subsequent fiscal periods would be reviewed and, as appropriate, approved by the Department.
Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA), the Agricultural Marketing Service (AMS) has considered the economic impact of this rule on small entities. Accordingly, AMS has prepared this initial regulatory flexibility analysis.
The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf. Thus, both statutes have small entity orientation and compatibility.
There are approximately 250 producers of Colorado Area II potatoes and approximately 93 handlers subject to regulation under the marketing order. Small agricultural producers are defined by the Small Business Administration (13 CFR 121.201) as those having annual receipts of less than $500,000, and small agricultural service firms are defined as those whose annual receipts are less than $5,000,000.
Based upon information provided by the Committee, 96 percent of the handlers of Area II potatoes have shipped under $5,000,000 worth of potatoes during the most recent season for which statistics are available. In addition, information provided by the National Agricultural Statistics Service was considered in determining the number of large and small producers by acreage, production, and producer prices. According to the information provided, the recent average yield per acre was 335 hundredweight of potatoes, and the recent season average producer price was $4.20 per hundredweight. This equates to average gross annual producer receipts of approximately $430,542 each. Based on the foregoing, it can be concluded that a majority of producers and handlers of Area II potatoes may be classified as small entities, excluding receipts from other sources.
This rule would increase the assessment rate established for the Committee and collected from handlers for the 2001-02 and subsequent fiscal periods from $0.0015 to $0.0035 per hundredweight of potatoes handled. The Committee unanimously recommended 2001-02 expenditures of $73,618 and an assessment rate of $0.0035 per hundredweight. The proposed assessment rate of $0.0035 is $0.002 more than the rate currently in effect and would increase the financial burden on handlers by approximately $33,000. The quantity of assessable fresh potatoes for the 2001-02 season is estimated at 16,500,000 hundredweight. The $0.0035 rate should provide $57,750 in assessment income which, when combined with interest income and income from the Committee's monetary reserve, would be adequate to cover budgeted expenses. The current rate would not provide enough funds to cover anticipated expenses.
The major expenditures recommended by the Committee for the 2001-02 year include $40,793 for salaries, $9,950 for office expenses, which include telephone service, supplies and postage, and $7,650 for building maintenance. Budgeted expenses for these items in 2000-01 were $39,793, $10,700, and $6,250, respectively.
The Committee recommended the increased assessment rate to help offset higher administration costs and to decrease the rate in which the monetary reserve has been relied upon in recent fiscal periods. Based on the Committee's 2001-02 crop estimate, the current reserve of $32,000 could be reduced by as much as $15,868 with the recommended assessment rate.
The Committee reviewed and unanimously recommended 2001-02
A review of historical information, as well as preliminary information pertaining to the upcoming fiscal period, indicates that the producer price for the 2001-02 season could range between $2.06 and $7.35 per hundredweight of potatoes. Therefore, the estimated assessment revenue for the 2001-02 fiscal period as a percentage of total producer revenue could range between 0.170 and 0.048 percent.
This action would increase the assessment obligation imposed on handlers. While assessments impose some additional costs on handlers, the costs are minimal and uniform on all handlers. Some of the additional costs may be passed on to producers. However, these costs would be offset by the benefits derived by the operation of the order. In addition, the Committee's meeting was widely publicized throughout the Colorado Area II potato industry and all interested persons were invited to attend the meeting and participate in Committee deliberations on all issues. Like all Committee meetings, the May 17, 2001, meeting was a public meeting and all entities, both large and small, were able to express views on this issue. Finally, interested persons are invited to submit information on the regulatory and informational impacts of this action on small businesses.
This proposed rule would impose no additional reporting or recordkeeping requirements on either small or large potato handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.
The Department has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule.
A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: http://www.ams.usda.gov/fv/moab.html. Any questions about the compliance guide should be sent to Jay Guerber at the previously mentioned address in the
A 30-day comment period is provided to allow interested persons to respond to this proposed rule. Thirty days is deemed appropriate because: (1) The 2001-02 fiscal period begins on September 1, 2001, and the order requires that the rate of assessment for each fiscal period apply to all assessable potatoes handled during such fiscal period; (2) the Committee needs to have sufficient funds to pay its expenses which are incurred on a continuous basis; and (3) handlers are aware of this action which was unanimously recommended by the Committee at a public meeting and is similar to other assessment rate actions issued in past years.
Marketing Agreements, Potatoes, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, 7 CFR part 948 is proposed to be amended as follows:
1. The authority citation for 7 CFR part 948 continues to read as follows:
7 U.S.C. 601-674.
2. Section 948.216 is revised to read as follows:
On and after September 1, 2001, an assessment rate of $0.0035 per hundredweight is established for Colorado Area II potatoes.
Agricultural Marketing Service, USDA.
Proposed rule.
This rule invites comments on proposed exemptions to the handling regulation prescribed under the marketing order (order) for Colorado Area No. 3 potatoes. These relaxations were unanimously recommended by the Colorado Potato Administrative Committee for Area No. 3 (Committee), the agency responsible for local administration of the order. This rule would exempt potatoes shipped for the purpose of experimentation and the manufacture or conversion into specified products from the grade, size, maturity, inspection and assessment requirements of the order. Relaxing handling requirements is expected to provide handlers with greater marketing flexibility, producers with increased returns, and consumers with more choices in buying fresh potatoes. This rule also clarifies the regulatory text by specifying that potatoes shipped for livestock feed, charity, and certified seed are exempt from assessment requirements.
Comments must be received by August 22, 2001.
Interested persons are invited to submit written comments concerning this proposal. Comments must be sent to the Docket Clerk, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, room 2525-S, P.O. Box 96456, Washington, DC 20090-6456; Fax: (202) 720-8938, or E-mail:
Dennis L. West, Northwest Marketing Field Office, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1220 SW Third Avenue, room 385, Portland, Oregon 97204; telephone: (503) 326-2724, Fax: (503) 326-7440; or George J. Kelhart, Technical Advisor, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, Room 2525-S, P.O. Box 96456, Washington, DC 20090-6456; telephone: (202) 720-2491, Fax: (202) 720-8938.
Small businesses may request information on complying with this regulation by contacting Jay Guerber, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, room 2525-S, P.O. Box 96456, Washington, DC 20090-6456; telephone: (202) 720-2491, Fax: (202)
This proposal is issued under Marketing Agreement No. 97 and Marketing Order No. 948 (7 CFR part 948), both as amended, regulating the handling of Irish potatoes grown in Colorado, hereinafter referred to as the “order.” The order is authorized by the Agricultural Marketing Agreement Act of 1937, as amended, (7 U.S.C. 601-674), hereinafter referred to as the “Act.”
The Department of Agriculture (Department) is issuing this rule in conformance with Executive Order 12866.
This proposal has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is not intended to have retroactive effect. This proposal will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule.
The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with the Secretary a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. After the hearing the Secretary would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review the Secretary's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.
This rule invites comments on proposed exemptions to the handling regulation prescribed under the order. This rule would exempt potatoes shipped for the purpose of experimentation and the manufacture or conversion into specified products from the grade, size, maturity, inspection and assessment requirements of the order. These proposed exemptions were unanimously recommended by the Committee. This rule also clarifies the regulatory text by specifying that potatoes shipped for livestock feed, charity, and certified seed are exempt from assessment requirements.
Section 948.22 authorizes the issuance of regulations for grade, size, quality, maturity, and pack for any variety or varieties of potatoes grown in different portions of the production area during any period. Section 948.23 authorizes the issuance of regulations that modify, suspend, or terminate requirements issued under § 948.22 or to facilitate the handling of potatoes for special purposes. Section 948.24 requires adequate safeguards be prescribed to ensure that potatoes handled pursuant to § 948.23 enter authorized trade channels. Safeguard procedures for special purpose shipments are specified in §§ 948.120 through 948.125. Section 948.387 of the order's handling regulations establishes the grade, size, maturity, and inspection requirements. The Committee's assessment rate is established under § 948.215.
At its meeting on December 14, 2000, the Committee unanimously recommended that potatoes shipped for the purpose of experimentation and the manufacture or conversion into specified products be exempt from the grade, size, maturity, and inspection requirements provided under the order's regulations for Area No. 3. The Committee recommended that experimentation and the manufacture or conversion into specified products be added under § 948.387(d) as special purpose shipments.
As is currently required for all special purpose shipments, handlers would apply for and obtain a Certificate of Privilege for handling such potatoes and furnish the Committee such information as it may require to track shipments, determine whether applicable requirements have been met, and verify whether proper disposition has occurred.
At a subsequent meeting on March 8, 2001, the Committee reconfirmed its earlier action and, in addition, unanimously recommended that shipments for livestock feed, charity, certified seed, and for the purpose of experimentation and the manufacture or conversion into specified products be exempt from assessment requirements. Shipments of potatoes for livestock feed, charity, and certified seed are specified as special purpose shipments are currently exempt from grade, size, maturity, and inspection requirements.
Some producers and handlers within the production area are interested in developing new uses for fresh potatoes using experimental varieties and packs. The Committee also anticipates that some handlers may want to ship traditional varieties, or experimental varieties, for use in the manufacture or conversion into special products, or perform the manufacture or conversion themselves prior to shipment. Handlers are, for example, attempting to develop new special products such as fresh cut potatoes shipped in vacuum-sealed bags. Handlers have also expressed a desire to experiment with the shipment of potatoes of different varieties in the same container. This is not currently possible because the potatoes do not meet the minimum grade requirement that a particular lot of potatoes has “similar” varietal characteristics.
The Committee strongly encourages innovation that could result in the development of new varieties, markets, or opportunities for the expanded use of fresh forms of potato products, such as fresh cut potatoes in vacuum-sealed bags, that would benefit the Colorado potato industry. Some of the new varieties have irregular shapes or are small in size, and will not meet minimum order requirements. This prevents them from being shipped except under the minimum quantity exemption of 1,000 pounds specified in paragraph (f) of § 948.387. Thus, handlers are prevented from shipping larger quantities.
For the purpose of this rule, the term “manufacture or conversion into specified products” means the preparation of potatoes for market into products by peeling, slicing, dicing, applying material to prevent oxidation, or other means approved by the Committee, but not including other processing. Under the current regulation, potatoes for manufacture or conversion into specified products are required to be inspected and certified as meeting the specified quality requirements prior to preparation for market.
The current regulation requires that all potatoes shipped to fresh market, with the exception of those meeting minimum quantity and special purpose exemptions, be inspected and assessed. These regulations do not provide adequate relief for commercially viable shipments of non-traditional varieties, potatoes for experimentation, or the shipment of potatoes for the manufacture or conversion into products. This rule would exempt such shipments and relieve handlers of this regulatory burden.
This proposed relaxation of the Area No. 3 handling regulation is expected to encourage new product development that could lead to market expansion, which would benefit producers, handlers, buyers, and consumers. By relaxing the handling requirements on traditional and experimental varieties and on new and innovative fresh potato products, additional opportunities should be available to increase the fresh utilization of Colorado potatoes.
The Committee also unanimously recommended that shipments of potatoes for livestock feed, charity, and certified seed potatoes be exempt from assessment requirements. This Committee recommendation was made with the intent of treating all special purpose shipments in the same manner. As explained previously, shipments to these fresh outlets are currently exempt from the grade, size, maturity, and inspection requirements. The order only regulates, however, the shipment of potatoes outside the State of Colorado. It is very uncommon for Area No. 3 potatoes to be shipped for livestock feed, charity, or certified seed outside of the State of Colorado. It is not expected that exempting such shipments from assessments would have any effect of increasing shipments. Thus, this recommendation is expected to have little impact on handlers or the Committee's assessment income. And finally, this rule would clarify the current handling regulation to indicate that special purpose shipments for canning, freezing, and “other processing” are exempt from assessments. Such shipments are exempt from regulation under federal marketing orders in conformity with an amendment to the Act (Public Law No. 92-233, Feb. 15, 1972).
Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA), the Agricultural Marketing Service (AMS) has considered the economic impact of this action on small entities. Accordingly, the AMS has prepared this initial regulatory flexibility analysis.
The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf. Thus, both statutes have small entity orientation and compatibility.
There are approximately 13 handlers of Colorado Area No. 3 potatoes who are subject to regulation under the marketing order and approximately 31 producers of Colorado potatoes in the regulated area. Small agricultural service firms are defined by the Small Business Administration (13 CFR 121.201) as those having annual receipts of less than $5,000,000, and small agricultural producers are defined as those whose annual receipts are less than $500,000.
Based upon information provided by the Committee, all handlers of Area No. 3 potatoes have shipped under $5,000,000 worth of potatoes during the most recent season for which numbers are available. In addition, information reported by the National Agricultural Statistics Service was considered in determining the number of large and small producers by acreage, production, and producer prices. According to the information provided, the average yield per acre was 340 hundredweight, and the season average producer price was $5.95 per hundredweight for 1999 crop. This equates to average gross receipts to producers of approximately $107,200. Based on the foregoing, it can be concluded that all handlers and the majority of producers of Area 3 potatoes may be classified as small entities, excluding receipts from other sources.
This proposed rule would exempt special purpose shipments of potatoes from the grade, size, maturity, inspection and assessment requirements prescribed under the order's handling regulations for Colorado Area No. 3 potatoes. Based on authority in §§ 948.22, 948.23, and 948.24 of the order, the Committee at its meeting on December 14, 2000, unanimously recommended that potatoes shipped for the purpose of experimentation and the manufacture or conversion into specified products be exempt from the grade, size, maturity, and inspection requirements of the order. The Committee at its meeting on March 8, 2001, recommended that potatoes for experimentation and the manufacture or conversion into specified products be exempt from assessment requirements. It also recommended that the regulatory text of the applicable provisions be clarified by specifying that potatoes shipped for livestock feed, charity, and certified seed are exempt from assessment requirements.
Producers and handlers within the production area are interested in developing innovative uses for fresh potatoes. The Committee anticipates that some handlers may want to ship traditional or experimental varieties for the manufacture or conversion of potatoes into fresh forms such as fresh cut french fries using experimental packaging and preservation methods. The Committee strongly encourages innovation that could result in the development of new varieties and market opportunities for the expanded use of fresh forms of potato products, such as those packaged in vacuum-sealed bags. The relaxation of Area No. 3 handling and assessment requirements is expected to encourage new product development which would benefit producers, handlers, buyers, and consumers and increase the fresh utilization of Colorado potatoes. The proposed changes are expected to have a positive economic impact on the Colorado potato industry.
As with all special purpose shipments, handlers are currently required to apply and obtain a Certificate of Privilege for handling such potatoes and furnish the Committee such information as they may require to track shipments, determine whether applicable requirements have been met, and verify whether proper disposition has occurred. It is the intent of the Committee to keep reporting requirements to a minimum level necessary to monitor compliance while determining the viability and extent of any changes in the marketing of the area potatoes. There is no available information detailing how many potatoes this relaxation will allow to be marketed. During the previous growing season, one producer planted less than 20 acres of the non-traditional, experimental type varieties on a trial basis. No viable alternatives to this action were identified that would ensure innovations in marketing and product development. Furthermore, the goals expressed by the committee could not be solved absent this action.
The Committee estimates that two or three handlers may apply for and obtain a Certificate of Privilege for the handling of potatoes for experimentation or for the manufacture or conversion into specified products. It is estimated that the time taken by the handlers who apply will total less than ten hours and this time is currently approved under OMB No. 0581-0178 by the Office of Management and Budget (OMB) in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35).
As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. The Department has not identified any relevant Federal rules that duplicate, overlap or conflict with this rule.
In addition, the Committee's meetings were widely publicized throughout the Colorado potato industry and all interested persons were invited to attend the meetings and participate in Committee deliberations on all issues. Like all Committee meetings, those held on December 14, 2000, and March 8, 2001, were open to the public and all entities, both large and small, were able to express their views on this issue. Finally, interested persons are invited to
A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at:
A 20-day comment period is provided to allow interested persons to respond to this proposal. Twenty days is deemed appropriate because handlers should be able to take advantage of the relaxed requirements as soon as possible. The shipping season began on July 1, 2001. All written comments timely received will be considered before a final determination is made on this matter.
Marketing agreements, Potatoes, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, 7 CFR part 948 is proposed to be amended as follows:
1. The authority citation for 7 CFR part 948 continues to read as follows:
7 U.S.C. 601-674.
2. In § 948.387, paragraph (d)(1) is revised, a new paragraph (d)(1)(v) is added, and in paragraph (g) a new sentence is added before the last sentence to read as follows:
(d) * * *
(1) The grade, size, maturity and inspection requirements of paragraphs (a), (b), and (c) of this section and the assessment requirements of this part shall not be applicable to shipments of potatoes for:
(i) * * *
(v) Experimentation and the manufacture or conversion into specified products.
(g)
Agricultural Marketing Service, USDA.
Proposed rule.
This rule invites comments on changes to the requirements currently prescribed for producer field-packed tomatoes under the Florida tomato marketing order (order). The order regulates the handling of tomatoes grown in Florida, and is administered locally by the Florida Tomato Committee (Committee). This rule would remove the net weight and weight labeling exemptions for producer field-packed tomatoes. Producer field-packed tomatoes compete directly with packinghouse tomatoes that must meet the net weight requirement. This change would require all tomatoes, regardless of where they are packed, to meet the same net weight requirements so that these requirements are the same for producer field-packed tomatoes and packinghouse tomatoes.
Comments must be received by August 22, 2001.
Interested persons are invited to submit written comments concerning this proposal. Comments must be sent to the Docket Clerk, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, room 2525-S, P.O. Box 96456, Washington, DC 20090-6456; Fax: (202) 720-8938, or E-mail: moab.docketclerk@usda.gov. All comments should reference the docket number and the date and page number of this issue of the
Doris Jamieson, Southeast Marketing Field Office, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, P.O. Box 2276, Winter Haven, Florida 33883; telephone: (863) 299-4770, Fax: (863) 299-5169; or George Kelhart, Technical Advisor, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, room 2525-S, P.O. Box 96456, Washington, DC 20090-6456; telephone: (202) 720-2491, Fax: (202) 720-8938.
Small businesses may request information on complying with this regulation by contacting Jay Guerber, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, P.O. Box 96456, room 2525-S, Washington, DC 20090-6456; telephone: (202) 720-2491, Fax: (202) 720-8938, or E-mail: Jay.Guerber@usda.gov.
This proposal is issued under Marketing Agreement No. 125 and Order No. 966, both as amended (7 CFR part 966), regulating the handling of tomatoes grown in Florida, hereinafter referred to as the “order.” The marketing agreement and order are effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”
The Department of Agriculture (Department) is issuing this rule in conformance with Executive Order 12866.
This proposal has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is not intended to have retroactive effect. This proposal will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule.
The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with the Secretary a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. After the hearing the Secretary would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review the Secretary's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.
This proposal invites comments on removing the net weight exemption currently prescribed for producer field-packed tomatoes under the Florida tomato marketing order. The Committee recommended this change at its meeting on February 27, 2001, with a vote of eight in favor and two opposed.
Under the order, tomatoes produced in the production area and shipped to fresh market channels outside the regulated area are required to meet grade, size, inspection, and container requirements. These requirements apply during the period October 10 through June 15 each year. Current requirements include a minimum grade of U.S. No. 2 and a minimum size of 2
Section 966.52 of the Florida tomato marketing order provides authority for the modification, suspension, and termination of regulations. It includes authority to establish and modify pack and container requirements for tomatoes grown in the defined production area and handled under the order.
Section 966.323 specifies the handling regulations issued under the order. Section 966.323(a)(3)(i) requires that certain types of tomatoes packed by registered handlers be packed in containers of 10, 20, and 25 pounds designated net weights. The net weight of a container's contents cannot be less than the designated net weight or exceed the designated net weight by more than two pounds. Section 966.323(a)(3)(ii) requires that certain types of tomatoes be packed by registered handlers in containers that are marked with the designated net weight and with the name and address of the registered handler, and that such containers must be packed at the registered handler's facilities.
Section 966.323(d)(1) currently exempts producer field-packed tomatoes from the container net weight requirements and the requirement that each container or lid be marked to indicate the designated net weight. It also exempts producer field-packed tomatoes from the requirement that all containers must be packed at a registered handler's facilities. However, field-packed tomatoes still must meet the other requirements of the marketing order, including established grade, size, container, pack, and inspection requirements.
This rule would remove the net weight and weight labeling exemptions for producer field-packed tomatoes. This change would require all tomatoes, unless specifically granted an exemption, to meet the same net weight requirements regardless of where they are packed.
Producer field-packed tomatoes are tomatoes which at the time of inspection are No. 3 color or higher (according to color classification requirements in the U.S. tomato standards), that are picked and place packed in new containers in the field by a producer as defined in § 966.150 of the rules and regulations. The tomatoes are then transported to a registered handler's facilities for final preparation for market and for inspection.
Producer field-packed tomatoes are picked by hand and place packed in containers in layers. When place packing a container of tomatoes, the fill is determined by the size of the tomato, dimensions of the container, and the way the tomatoes are positioned in the box. Each layer is tightly packed by rotating the tomatoes and by the size selection of the tomatoes. Each 25-pound container usually has three to four layers of tomatoes.
Most tomatoes from Florida are packed and shipped at the mature green stage. Shipments of mature green tomatoes represented approximately 83.7 percent of total fresh shipments during the 1999-2000 season. Tomatoes are picked and packed at the mature green stage to facilitate handling. The vast majority of mature green tomatoes are packed using a mechanized process. The tomatoes are brought to the packinghouse where they are run across sizing equipment, and then are packed in volume fill containers by size and weight. At the mature green stage, the tomatoes are firm and are able to withstand the packing process. This is an efficient process that facilitates packing in volume.
However, when packing a producer field-packed tomato that is more ripe and mature, the process used to pack mature greens is not as effective. This is because as the tomato begins to ripen it begins to soften. Tomatoes of No. 3 color and above cannot tolerate the rigors of the mechanized handling process. This packing process bruises and damages more mature tomatoes, increasing the volume of culls and tomatoes that fail inspection.
When the net weight exemption for producer field-packed tomatoes was established October 10, 1998 (63 FR 54556), the Committee thought that meeting the net weight requirement would be difficult without the precision of the mechanical process available at the packinghouse. Therefore, the Committee recommended establishing the net weight exemption to facilitate the packing of field-packed tomatoes. However, after several years of experience, those packing producer field-packed tomatoes have enhanced their skill for packing tomatoes in the field. Many now pack to meet the net weight requirement even though the exemption is available.
Field-packed tomatoes are sized as either 5X6 or 6X6 and larger with no upper limit on either size. This differs from the size requirements for tomatoes packed at a packinghouse. Packinghouse tomatoes must meet a minimum and a maximum size requirement on tomatoes designated as 6X6. Because there is no upper limit on the either 5X6 or 6X6 sized field-packed tomatoes, handlers have more flexibility to add and remove tomatoes of different sizes in order to meet a specified weight requirement without compromising their ability to meet the size requirement. Handlers can replace larger tomatoes with smaller ones and vice versa in order to adjust box weight to meet the net weight requirements. In its discussion, the Committee stated that most handlers of producer field-packed tomatoes are voluntarily meeting the 25-pound net weight requirements.
It also found that some handlers have started using the net weight exemption as a marketing tool. The Committee stated that producer field-packed tomatoes packed in containers designed to hold a 25-pound designated net weight were being presented for sale with weights of 28 to 32 pounds. The net weight requirement only allows packinghouses to put between 25 and 27 pounds of tomatoes to a box. Some handlers of producer field-packed tomatoes are adding additional tomatoes to the containers to create a marketing advantage over those handlers required to meet the net weight requirements. Buyers prefer the additional weight in containers of field-packed tomatoes to packinghouse tomatoes because they are getting more tomatoes for their money.
In its discussions, Committee members stated that over packing containers is a poor marketing practice. Selling a container of tomatoes that weighs more than 25 pounds at the price for a 25-pound container has a price depressing effect on the market, and reduces returns to growers. It was also noted that the marketing order was put in place to create an orderly market for all tomatoes grown in Florida because the market at that time was in such disarray. The net weight was established to provide an industry standard and give buyers and sellers a uniform point of comparison. With the volume of producer field-packed tomatoes increasing, several Committee
In addition, there was also concern regarding the possibility that damaged tomatoes could reach the market. Committee members stated that when a 25-pound box of tomatoes is filled to exceed a 27-pound net weight, there is an increased chance that tomatoes will be crushed when placing the lid on the container. Overfilling could also result in fruit being damaged during shipment.
The market for red, vine-ripe tomatoes has grown over the past few years. The Committee now estimates that between five and fifteen percent of the total daily fresh tomato shipments from Florida are producer field-packed tomatoes. This is a one to two percent increase from last season. Retailers consider the fast growing market for red, vine-ripe tomatoes to be the way of the future and the Committee estimates that the volume of producer field-packed tomatoes will continue to grow in order to supply this market. Therefore, the Committee wants to continue to develop this market by providing a uniform, quality product.
Therefore, this rule would remove the exemption from the net weight requirement for producer field-packed tomatoes, and would require producer field-packed tomatoes to meet the same net weight and weight labeling requirements as those packed in a packinghouse.
The two Committee members who opposed the recommendation agreed that a problem exists with the net weight exemption for producer field-packed tomatoes. However, they were not sure that the action recommended was the best solution to the problem and wanted more time to consider the issue. Therefore, they voted against the proposal.
Section 8e of the Act requires that whenever grade, size, quality, or maturity requirements are in effect for certain commodities under a domestic marketing order, including tomatoes, imports of that commodity must meet the same or comparable requirements. However, the Act does not authorize the imposition of pack and container requirements on imports, when such requirements are in effect under a domestic marketing order. Therefore, no change is necessary in the tomato import regulation as a result of this action.
This change would not affect the exemption for single layer and two-layer place packed tomatoes. They would continue to be exempt from the net weight requirements under the order. Therefore, producer field-packed tomatoes place packed in single or two layer packs would continue to be exempt from the net weight requirements.
Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA), the Agricultural Marketing Service (AMS) has considered the economic impact of this action on small entities. Accordingly, AMS has prepared this initial regulatory flexibility analysis.
The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf. Thus, both statutes have small entity orientation and compatibility.
There are approximately 82 handlers of Florida tomatoes who are subject to regulation under the marketing order and approximately 100 tomato producers in the regulated area. Small agricultural service firms are defined by the Small Business Administration (13 CFR 121.201) as those having annual receipts of less than $5,000,000, and small agricultural producers are defined as those having annual receipts of less than $500,000.
Based on the industry and Committee data, the average annual price for fresh Florida tomatoes during the 1999-2000 season was $6.89 per 25-pound carton or equivalent, and total fresh shipments for the 1999-2000 season were 58,006,721 25-pound equivalent cartons of tomatoes. Based on this information, the majority of handlers would be classified as small entities as defined by the SBA. The majority of producers of Florida tomatoes may also be classified as small entities.
This proposal would revise the handling requirements currently prescribed for producer field-packed tomatoes under § 966.323 of the order. Currently, producer field-packed tomatoes are exempt from the net weight requirements under the order. The net weight requirement only allows packinghouses to put between 25 and 27 pounds of tomatoes into a box designed to hold 25 pounds. Some handlers of producer field-packed tomatoes are adding additional tomatoes to their containers to the detriment of handlers required to meet the net weight requirements. This rule would remove the exemption from the net weight requirement for producer field-packed tomatoes and require all tomatoes, regardless of where they are packed, to meet the same net weight requirements. Authority for this action is provided in § 966.52 of the order.
There could be some additional costs associated with this rule. Removing the net weight exemption would require those packing producer field-packed tomatoes to take the steps necessary to ensure that the tomatoes meet the net weight requirement. This could result in additional costs from the purchase of equipment to weigh the boxes and additional labor needed. However, many of those packing producer field-packed tomatoes have already incurred these costs and are meeting the net weight requirements voluntarily.
Currently, boxes containing between 28 and 32 pounds of field-packed tomatoes may be sold for the same price as a box containing 25 to 27 pounds of tomatoes. This reduces total pack out, depresses price, and reduces returns to the grower. In addition, these tomatoes are being sold into what retailers consider to be the fastest growing segment of the tomato market. Over packing boxes increases the probability that some tomatoes will be damaged. Shipping damaged tomatoes could have a negative impact on the market and the ability of Florida tomato handlers in meeting that market's needs. This rule would help counter that possibility.
This rule was recommended to benefit the Florida tomato industry. The costs or benefits of this rule would not be disproportionately greater or less for small handlers or producers than for larger entities.
The Committee discussed alternatives to this change, including making no change to the regulation. However, Committee members agreed that action needed to be taken, so this alternative was rejected. Another alternative considered was to change the size of the box for field-packed tomatoes. Some members of the Committee stated that this would not solve the problem, only add another box size, noting that handlers are already selling a 25-pound container of producer field-packed tomatoes that weighs more than 25 pounds. Changing only the size of the container would not prevent handlers from continuing to overfill the cartons. Therefore, this alternative was also rejected.
This proposed rule would remove the exemption from the net weight requirement for producer field-packed tomatoes under the Florida tomato marketing order.
This action would not impose any additional reporting or recordkeeping requirements on either small or large tomato handlers. As with all Federal marketing order programs, reports and
Further, the Committee's meeting was widely publicized throughout the tomato industry and all interested persons were invited to attend the meeting and participate in Committee deliberations on all issues. Like all Committee meetings, the February 27, 2001, meeting was a public meeting and all entities, both large and small, were able to express views on this issue. Finally, interested persons are invited to submit information on the regulatory and informational impacts of this action on small businesses.
A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: http://www.ams.usda.gov/fv/moab.html. Any questions about the compliance guide should be sent to Jay Guerber at the previously mentioned address in the
This rule invites comments on a change to the handling requirements currently prescribed under the Florida tomato marketing order. A 20-day comment period is provided to allow interested persons to respond to this proposal. Twenty days is deemed appropriate because any changes resulting from this proposed rule should be effective by the start of the 2001/2002 season, which begins October 10, 2001. All written comments timely received will be considered before a final determination is made on this matter.
Marketing agreements, Reporting and recordkeeping requirements, Tomatoes.
For the reasons set forth in the preamble, 7 CFR part 966 is proposed to be amended as follows:
1. The authority citation for 7 CFR part 966 continues to read as follows:
7 U.S.C. 601-674.
2. Section 966.323 is amended by revising the last sentence of paragraph (d)(1) to read as follows:
(d)
Federal Aviation Administration, DOT.
Proposed rule; withdrawal.
This action withdraws a notice of proposed rulemaking (NPRM) that proposed a new airworthiness directive (AD), applicable to certain Boeing Model 767 series airplanes. That action would have required repetitive inspections of the side load underwing fitting bushings for broken sealant or bushing migration, and corrective action, if necessary. That action also would have provided for optional terminating action in lieu of repetitive inspections. Since the issuance of the NPRM, the Federal Aviation Administration (FAA) has received new data and has issued alternative rulemaking action. Accordingly, the proposed rule is withdrawn.
John D. Craycraft, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (425) 227-2782; fax (425) 227-1181.
A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to add a new airworthiness directive (AD), applicable to certain Boeing Model 767 series airplanes, was published in the
Since the issuance of that NPRM on November 18, 1999, the FAA has issued alternative rulemaking action, which, in addition to comments we have received in response to the NPRM, has caused us to reconsider our previous position on this rulemaking action.
We have considered the comments and recommendations we received. Although one commenter supports the NPRM as proposed, eight other commenters object to it for various reasons. Some of those reasons follow:
• Bushing migration does not present an immediate safety concern, and no significant corrosion has been found in the side load underwing fitting. For these reasons, the commenters believe that the inspections specified in the NPRM are unnecessary.
• The cost estimates in the NPRM are too low because of the extensive work required, special tooling, and the resultant impact on scheduled service. Operators recommend increasing the cost estimates to include additional costs for labor, access and closeup, and special tooling and equipment.
• The compliance times for the inspections, as specified in the NPRM, would put affected airplanes out of service for an extended period. One commenter states that the manufacturer would not be able to provide an adequate number of kits within the specified compliance time. Operators recommend that the compliance times coincide with other existing maintenance programs such as the Strut Improvement Program (SIP) and the Corrosion Prevention and Control Program (CPCP).
• Removing and reinstalling the wing struts is not a routine task performed at regular maintenance intervals. In addition, the frequency of strut removal specified in the NPRM would severely impact airline schedules. The manufacturer recommends removing the strut only during a CPCP inspection,
• The repetitive inspections specified by paragraph (b) of the NPRM should be allowed to continue until incorporation of the SIP.
Since the issuance of the NPRM, the FAA has issued three ADs to require accomplishment of the 767 SIP. Although the NPRM requires repetitive inspections and corrective action if a broken sealant or bushing migration is detected, the new ADs require modification of the nacelle strut and wing structure on both the left and right sides of the airplane. The FAA adds that the discrepancy (broken sealant or bushing migration) specified in the NPRM also is addressed by the actions included in the 767 SIP. In addition, since issuance of Boeing Service Bulletin 767-57-0063, dated May 7, 1998, Boeing has provided to the FAA additional data indicating that the recommended compliance times listed in that service bulletin were overly conservative. For these reasons, the FAA has determined that issuance of the NPRM is no longer necessary since the intent of that AD will be accomplished by the following previously issued ADs:
• AD 2001-02-07, amendment 39-12091 (66 FR 8085, January 29, 2001).
• AD 2001-06-12, amendment 39-12159 (65 FR 17492, April 2, 2001).
• AD 2000-19-09, amendment 39-11910 (65 FR 58641, October 2, 2000).
Upon further consideration, the FAA has determined that, in light of the above information, the identified unsafe condition has been addressed. Accordingly, the NPRM is hereby withdrawn.
Withdrawal of this NPRM constitutes only such action, and does not preclude the agency from issuing another action in the future, nor does it commit the agency to any course of action in the future.
Since this action only withdraws a notice of proposed rulemaking, it is neither a proposed nor a final rule and therefore is not covered under Executive Order 12866, the Regulatory Flexibility Act, or DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979).
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, the notice of proposed rulemaking, Docket 99-NM-132-AD, published in the
Federal Aviation Administration, DOT.
Supplemental notice of proposed rulemaking; reopening of comment period.
This document revises an earlier proposed airworthiness directive (AD); applicable to certain Boeing Model 737-100, -200, and -200C series airplanes; which would have required inspections for corrosion and cracking of the inboard track of each outboard flap, and repair, if necessary, and would have provided an optional terminating action. This new action expands the applicability and removes the optional terminating action of the proposed AD. For certain airplanes, this action would require new repetitive inspections for discrepancies of the rear spar attachments and cracks in the upper flange of the inboard track at the rear spar attachment of each outboard flap, and eventual rework of the flap track assembly and rear spar attachments, including replacement of the flap track with a new track, if necessary. For all airplanes, this action would require repetitive inspections for cracks in the upper flange of the inboard flap tracks at the rear spar attachments, and corrective action, if necessary. These actions are necessary to find and fix discrepancies of the inboard tracks of the outboard flaps, which could result in loss of the outboard trailing edge flaps and consequent reduced controllability of the airplane. These actions are intended to address the identified unsafe condition.
Comments must be received by September 6, 2001.
Submit comments in triplicate to the Federal Aviation Administration (FAA), Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 99-NM-21-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056. Comments may be inspected at this location between 9 a.m. and 3 p.m., Monday through Friday, except Federal holidays. Comments may be submitted via fax to (425) 227-1232. Comments may also be sent via the Internet using the following address: 9-anm-nprmcomment@faa.gov. Comments sent via fax or the Internet must contain “Docket No. 99-NM-21-AD” in the subject line and need not be submitted in triplicate. Comments sent via the Internet as attached electronic files must be formatted in Microsoft Word 97 for Windows or ASCII text.
The service information referenced in the proposed rule may be obtained from Boeing Commercial Airplane Group, P.O. Box 3707, Seattle, Washington 98124-2207. This information may be examined at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington.
James Blilie, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (425) 227-2131; fax (425) 227-1181.
Interested persons are invited to participate in the making of the proposed rule by submitting such written data, views, or arguments as they may desire. Communications shall identify the Rules Docket number and be submitted in triplicate to the address specified above. All communications received on or before the closing date for comments, specified above, will be considered before taking action on the proposed rule. The proposals contained in this document may be changed in light of the comments received.
Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the proposed rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report
Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this proposal must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 99-NM-21-AD.” The postcard will be date-stamped and returned to the commenter.
Any person may obtain a copy of this NPRM by submitting a request to the FAA, Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 99-NM-21-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.
A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to add an airworthiness directive (AD), applicable to certain Boeing Model 737-100, -200, and -200C series airplanes, was published as a notice of proposed rulemaking (NPRM) in the
Since the issuance of that NPRM, the FAA has reviewed and approved Boeing Service Bulletin 737-57A1249, Revision 1, including Appendix A, dated June 1, 2000. That service bulletin describes procedures for repetitive detailed visual inspections to find discrepancies (including corrosion, or missing, damaged, or migrated anti-fret strips and tapered shims) of the rear spar attachments of the flap tracks. That service bulletin also describes procedures for repetitive detailed visual, high frequency eddy current (HFEC), and ultrasonic inspections to find cracking in the upper flange of the inboard track of each outboard flap at the rear spar attachment. The service bulletin also describes procedures for rework of the flap track assembly and rear spar attachments. The rework procedures include the following:
• Removal of the flap track.
• A detailed visual inspection for a missing, damaged, or migrated anti-fret strip and tapered shim of the rear spar attachments of the flap tracks; replacement of the anti-fret strip with a new aluminum anti-fret strip (or installation of an aluminum strip if no strip is installed), if necessary; and replacement of the tapered shim with a new shim (or installation of a shim if no shim is installed).
• Eddy current and ultrasonic inspections for fatigue cracking of the flap tracks.
• A detailed visual inspection for corrosion of the flap tracks.
• Rework of attachment holes.
• Replacement of the flap track with a new track, if necessary.
The procedures described in Boeing Service Bulletin 737-57A1249, Revision 1, are similar to the procedures described in Boeing Service Bulletin 737-57-1065, Revision 3, dated December 17, 1982, which was referenced in the original NPRM as the appropriate source of service information for certain proposed actions. Among other things, however, Boeing Service Bulletin 737-57A1249, Revision 1, describes more rework instructions than does Boeing Service Bulletin 737-57-1065. Airplanes reworked according to Boeing Service Bulletin 737-57-1065 would require additional rework according to this proposed AD and Boeing Service Bulletin 737-57A1249, Revision 1.
The NPRM listed certain Boeing Model 737-100, -200, and -200C series airplanes in its applicability statement. Since the issuance of the NPRM, the FAA has received a report of similar cracking in the area addressed by the NPRM on a Boeing Model 737-300 series airplane. The interface between the inboard track of each outboard flap and the rear spar on the subject Model 737-300 series airplane had been modified according to procedures similar to those identified as optional terminating action in the NPRM. Other Model 737-300, -400, and -500 series airplanes also have been similarly modified. Because of this report, the FAA finds that certain Model 737-300, -400, and -500 series airplanes—in addition to the Model 737-100, -200, and -200C series airplanes identified in the NPRM—may be subject to the unsafe condition addressed by this proposed AD. Therefore, the applicability statement of this supplemental NPRM lists all of these airplanes.
In addition, Boeing Service Bulletin 737-57A1249, Revision 1, states that no more work is necessary following the rework of the flap track described in that service bulletin. Because of the report of cracking on the Model 737-300 series airplane described above, the FAA finds that rework according to Boeing Service Bulletin 737-57A1249, Revision 1, may not ensure an adequate level of safety for the service life of the airplane. Therefore, this supplemental NPRM proposes to require additional repetitive inspections following the rework or the modification equivalent to the rework that was done during production on certain airplanes.
Due consideration has been given to the comments received in response to the NPRM. Certain comments have resulted in changes to the proposal, and those comments are addressed below.
One commenter requests that the FAA revise the proposed rule to clarify that certain airplanes are not subject to the proposed actions. The commenter states that airplanes having line numbers (L/N) 1032 through 1585 on which new flap tracks were installed according to Boeing Service Bulletin 737-57-1203, dated November 15, 1990, do not need to have flap tracks replaced as specified in the proposed rule. The commenter states that new flap tracks installed according to that service bulletin have the new aluminum anti-fret strip that this proposed AD would require and meet all requirements of the proposed rule.
The FAA concurs with the commenter's request. The applicability of this supplemental NPRM has been revised to exclude airplanes on which new flap tracks were installed according to Boeing Service Bulletin 737-57-1203.
One commenter requests that repetitive inspections for cracking be required for all airplanes. For airplanes having L/Ns 870 through 1585 inclusive on which replacement flap tracks are installed, paragraph (c) of the NPRM states that no further action is required if no corrosion or cracking is found during the initial inspection. The commenter states that one-time visual and HFEC inspections may not be sufficient to ensure that any crack is found in a timely manner.
The FAA concurs with the commenter's request, and paragraph (c) of the NPRM has not been included in this supplemental NPRM. This supplemental NPRM proposes to require inspections and eventual rework or replacement of flap tracks for all airplanes with L/Ns 1 through 869 inclusive and airplanes with L/Ns 870 through 1585 inclusive on which the original flap tracks have been replaced with certain flap tracks. As stated above, this supplemental NPRM also proposes to require post-rework repetitive inspections for all airplanes identified in the applicability statement of this document.
One commenter, the manufacturer, requests that the proposed AD be revised to make it clear that airplanes modified according to Boeing Service Bulletin 737-57-1065, Revision 3, require additional work according to Boeing Service Bulletin 737-57A1249. The commenter states that this change is necessary because Boeing Service Bulletin 737-57-1065, Revision 3, was not intended to address the specific unsafe condition identified in the proposed AD.
The FAA concurs with the commenter's request and has included appropriate statements in the “Explanation of New Service Information” section of the preamble of this supplemental NPRM. Also, a new “Note 2” has been added to the body of this proposed AD to state that airplanes modified according to Boeing Service Bulletin 737-57-1065 are subject to additional work as described in this AD and in Boeing Service Bulletin 737-57A1249, Revision 1.
One commenter requests various changes to language used in the NPRM. The changes recommended by the commenter include:
• Refer to “anti-fret strip” instead of “rub strip” in the “Discussion” and “Explanation of Relevant Service Information” sections of the proposed AD.
• Clarify the procedures involved in the rework as described in the “Explanation of Relevant Service Information” section of the proposed AD.
• Clarify the cause of the unsafe condition by revising the sentence in the “Discussion” section of the proposed AD that reads, “inadequate clamp-up of the attachment bolts can make the area where the flap track attaches to the rear spar more vulnerable to moisture absorption and, consequently, to corrosion” to read, “insufficient clamp-up of the attachment bolts can cause damage to the attachment seals, tapered shim, anti-fret strip, and protective finishes, and make the area where the flap track attaches to the rear spar more vulnerable to moisture absorption and, consequently, to corrosion.”
• Identify the area affected by cracking as “the upper flange of the inboard track of each/the outboard flap at the rear spar attachment” in the “Discussion” and “Explanation of Requirements of Proposed Rule” sections of the preamble, and in the statement of unsafe condition in the body of the proposed AD.
The FAA concurs with the intent of the commenter's request. Though some of the specific sections of the preamble referenced by the commenter are not repeated in this supplemental NPRM, the changes suggested by the commenter have been made in this supplemental NPRM wherever appropriate.
Since an unsafe condition has been identified that is likely to exist or develop on other products of this same type design, the proposed AD would require, for certain airplanes, new repetitive inspections for discrepancies (including corrosion, or missing, damaged, or migrated anti-fret strips and tapered shims) of the rear spar attachments and cracks in the upper flange of the inboard track at the rear spar attachment of each outboard flap. For certain airplanes, the proposed AD also would require eventual rework of the flap track assembly and rear spar attachments, including replacement of the flap track with a new track, if necessary. For all airplanes, this action would require post-rework repetitive inspections for cracks in the upper flange of the inboard flap tracks at the rear spar attachments, and corrective action, if necessary. The actions would be required to be accomplished according to Boeing Service Bulletin 737-57A1249, Revision 1, except as discussed below.
This supplemental NPRM differs from Boeing Service Bulletin 737-57A1249, Revision 1, in the following ways:
• Though the service bulletin states compliance times in terms of flight cycles and calendar time, this proposed AD states compliance times only in calendar time. The FAA finds it appropriate to state compliance times for the requirements of this proposed AD only in calendar time because corrosion cracking is a function of time, not flight cycles.
• The airplane manufacturer recommends that the actions in the service bulletin be accomplished on airplanes with 20,000 flight cycles or more, or 10 years of service. The FAA finds that, as of the effective date of this AD, all airplanes identified in paragraph (a) of this proposed AD will have been in service for more than 10 years since their date of manufacture. Therefore, this supplemental NPRM does not refer to this threshold in the compliance times for paragraphs (a), (b), and (c) of this AD.
• Operators also should note that, though the service bulletin specifies that the manufacturer may be contacted for disposition of certain repair conditions, this proposed AD would require the repair of those conditions to be accomplished according to a method approved by the FAA, or according to data meeting the type certification basis of the airplane approved by a Boeing Company Designated Engineering Representative who has been authorized by the FAA to make such findings.
Since this change expands the scope of the originally proposed rule, the FAA has determined that it is necessary to reopen the comment period to provide additional opportunity for public comment.
There are approximately 2,890 airplanes of the affected design in the worldwide fleet. The FAA estimates that 1,100 airplanes of U.S. registry would be affected by this proposed AD.
It would take approximately 4 work hours per airplane to accomplish the proposed inspections, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of the proposed inspections on U.S. operators is estimated to be $264,000, or $240 per airplane, per inspection cycle.
It would take approximately 12 work hours per airplane to accomplish the proposed rework, at an average labor rate of $60 per work hour. Required parts would cost approximately $532. Based on these figures, the cost impact of the rework proposed by this AD on U.S. operators is estimated to be $1,377,200, or $1,252 per airplane.
The cost impact figures discussed above are based on assumptions that no operator has yet accomplished any of the proposed requirements of this AD action, and that no operator would accomplish those actions in the future if
The regulations proposed herein would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this proposal would not have federalism implications under Executive Order 13132.
For the reasons discussed above, I certify that this proposed regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A copy of the draft regulatory evaluation prepared for this action is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. Section 39.13 is amended by adding the following new airworthiness directive:
This AD applies to each airplane identified in the preceding applicability provision, regardless of whether it has been otherwise modified, altered, or repaired in the area subject to the requirements of this AD. For airplanes that have been modified, altered, or repaired so that the performance of the requirements of this AD is affected, the owner/operator must request approval for an alternative method of compliance in accordance with paragraph (f) of this AD. The request should include an assessment of the effect of the modification, alteration, or repair on the unsafe condition addressed by this AD; and, if the unsafe condition has not been eliminated, the request should include specific proposed actions to address it.
Airplanes modified according to Boeing Service Bulletin 737-57-1065 are subject to additional work as described in this AD and in Boeing Service Bulletin 737-57A1249, Revision 1, dated June 1, 2000.
To find and fix discrepancies of the inboard tracks of the outboard flaps, which could result in loss of the outboard trailing edge flaps and consequent reduced controllability of the airplane, accomplish the following:
(a) For airplanes with line numbers (L/N) 1 through 869 inclusive, and airplanes with L/Ns 870 through 1585 on which the original flap tracks have been replaced with certain tracks as specified in Boeing Service Bulletin 737-57A1249, Revision 1, including Appendix A, dated June 1, 2000: Within 6 months after the effective date of this AD, whichever occurs later, accomplish the requirements of paragraphs (a)(1) and (a)(2) of this AD, according to Boeing Service Bulletin 737-57A1249, Revision 1, including Appendix A, dated June 1, 2000.
(1) Perform a detailed visual inspection for discrepancies (e.g., corrosion, or missing, damaged, or migrated anti-fret strips and tapered shims) of the rear spar attachments of the flap tracks.
(2) Perform detailed visual, high frequency eddy current (HFEC), and ultrasonic inspections for cracking in the upper flange of the inboard track of each outboard flap at the rear spar attachments.
Inspections and rework accomplished according to Boeing Alert Service Bulletin 737-57A1249, including Appendix A, dated December 16, 1999, is considered acceptable for compliance with the applicable action specified in this AD.
For the purposes of this AD, a detailed visual inspection is defined as: “An intensive visual examination of a specific structural area, system, installation, or assembly to detect damage, failure, or irregularity. Available lighting is normally supplemented with a direct source of good lighting at intensity deemed appropriate by the inspector. Inspection aids such as mirror, magnifying lenses, etc., may be used. Surface cleaning and elaborate access procedures may be required.”
(b) For airplanes subject to paragraph (a) of this AD: If no discrepancy is found during any inspection required by paragraph (a) of this AD, thereafter, repeat the inspections specified in paragraph (a) of this AD at intervals not to exceed 9 months, until the actions required by paragraph (c) of this AD have been accomplished.
(c) For airplanes subject to paragraph (a) of this AD: At the applicable time specified in paragraph (c)(1) or (c)(2) of this AD, accomplish rework of the flap track assembly and aft flap track attachments (including removal of the flap track; a detailed visual inspection for a missing, damaged, or migrated anti-fret strip and tapered shim of the rear spar attachments of the flap track; replacement of the anti-fret strip with a new aluminum anti-fret strip (or installation of an aluminum strip if no strip is installed), as applicable; replacement of the tapered shim with a new shim (or installation of a shim if no shim is installed); eddy current and ultrasonic inspections for fatigue cracking of the flap tracks; a detailed visual inspection for corrosion of the flap tracks; and rework of attachment holes), including replacement of the flap tracks, as applicable, by accomplishing all actions specified in part II of the Accomplishment Instructions of Boeing Service Bulletin 737-57A1249, Revision 1, including Appendix A, dated June 1, 2000. Do these actions according to that service bulletin, except as provided by paragraph (e) of this AD. Accomplishment of the actions required by this paragraph constitutes terminating action for the repetitive inspections required by paragraph (b) of this AD.
(1) If no discrepancy is found during any inspection required by paragraph (a) or (b) of this AD: Do the rework within 24 months after the effective date of this AD, whichever occurs later.
(2) If any discrepancy is found during any inspection required by paragraph (a) or (b) of this AD: Do the rework prior to further flight.
(d) For all airplanes: At the applicable time specified in paragraph (d)(1) or (d)(2) of this AD, and thereafter at least every 24 months, perform detailed visual, HFEC, and ultrasonic inspections for cracking in the upper flange of the inboard track of each outboard flap at the rear spar attachments according to Part II of the Accomplishment Instructions of Boeing Service Bulletin 737-57A1249, Revision 1, including Appendix A, dated June 1, 2000.
(1) For airplanes subject to paragraph (c) of this AD, do the inspections within 10 years after accomplishment of the rework according to paragraph (c) of this AD.
(2) For airplanes other than those identified in paragraph (d)(1) of this AD, do the inspections within 10 years since the airplane's date of manufacture, or within 6 months after the effective date of this AD, whichever occurs later.
(e) If any discrepancy is found during any action required by paragraphs (a), (b), or (c) of this AD, and the service bulletin specifies to contact Boeing for appropriate action; OR if any discrepancy is found during inspections according to paragraph (d) of this AD: Prior to further flight, repair according to a method approved by the Manager, Seattle Aircraft Certification Office (ACO), FAA; or according to data meeting the type certification basis of the airplane approved by a Boeing Company Designated Engineering Representative (DER) who has been authorized by the Manager, Seattle ACO, to make such findings. For a repair method to be approved by the Manager, Seattle ACO, as required by this paragraph, the approval letter must specifically reference this AD.
(f) An alternative method of compliance or adjustment of the compliance time that provides an acceptable level of safety may be used if approved by the Manager, Seattle ACO. Operators shall submit their requests through an appropriate FAA Principal Maintenance Inspector, who may add comments and then send it to the Manager, Seattle ACO.
Information concerning the existence of approved alternative methods of compliance with this AD, if any, may be obtained from the Seattle ACO.
(g) Special flight permits may be issued in accordance with sections 21.197 and 21.199 of the Federal Aviation Regulations (14 CFR 21.197 and 21.199) to operate the airplane to a location where the requirements of this AD can be accomplished.
National Archives and Records Administration (NARA).
Proposed rule; correction.
This document corrects the preamble of a proposed rule published in the
Nancy Allard at telephone number 301-713-7360 or fax number 301-713-7270.
In proposed rule FR Doc. 01-17791, beginning on page 37202 in the issue of July 17, 2001, make the following correction, in the
“The changes proposed in this rulemaking are intended to reduce Federal agency burden in the areas of submitting records disposition manuals to NARA and implementing disposition authorities for records covered by General Records Schedules. We specifically seek agency comment on the clarity of these proposed changes and whether they will indeed provide a benefit to the agencies.”
Environmental Protection Agency (EPA).
Proposed rule.
The EPA is proposing to amend the national emission standards for hazardous air pollutants (NESHAP) for pharmaceuticals production. This action proposes to correct referencing errors, add test methods for analyzing wastewater, define triethylamine as a soluble hazardous air pollutant (HAP) instead of a partially soluble HAP, add an outlet concentration limit for storage tank emissions, clarify the monitoring frequency requirements for connectors, and add planned routine maintenance provisions for centralized combustion control devices.
In the “Rules and Regulations” section of this
If we receive no adverse comments, we will take no further action on this proposed rule. If an adverse comment applies to an amendment, paragraph, or section, and that provision may be addressed separately from the remainder of the rule, we will withdraw only those provisions on which we received adverse comments. We will publish a timely withdrawal in the
Comments. Written comments must be received by September 4, 2001, unless a hearing is requested by August 13, 2001. If a hearing is requested, written comments must be received by September 17, 2001.
Mr. Randy McDonald, Organic Chemicals Group, Emission Standards Division (MD-13), U.S. EPA, Research Triangle Park, North Carolina 27711, telephone number (919) 541-5402, electronic mail address: mcdonald.randy@epa.gov.
Commenters wishing to submit proprietary information for consideration must clearly distinguish such information from other comments and clearly label it as CBI. Send submissions containing such proprietary information directly to the following address, and not to the public docket, to ensure that proprietary information is not inadvertently placed in the docket: Attention: Mr. Randy McDonald, c/o OAQPS Document Control Officer (Room 740B), U.S. EPA, 411 W. Chapel Hill Street, Durham, NC 27701. The EPA will disclose information identified as CBI only to the extent allowed by the procedures set forth in 40 CFR part 2. If no claim of confidentiality accompanies a submission when it is received by EPA, the information may be made available to the public without further notice to the commenter.
This table is not intended to be exhaustive, but rather provides a guide for readers likely to be interested in the revisions to the rule affected by this action. To determine whether your facility, company, business, organization, etc., is regulated by this action, you should carefully examine all of the applicability criteria in § 63.1250 of the rule. If you have questions regarding the applicability of these proposed amendments to a particular entity, consult the person listed in the preceding
The RFA generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of this proposed rule on small entities, a small entity is defined as: (1) A small business in the North American Industrial Classification System (NAICS) code 325411 or 325412 that has as many as 750 employees; (2) a small business in NAICS code 325199 that has as many as 1,000 employees; (3) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (4) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.
After considering the economic impacts of this proposed rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. The EPA has determined that none of the small entities will experience a significant impact because the amendments impose no additional regulatory requirements on owners or
For information regarding other administrative requirements for this action, please see the direct final rule action that is located in the “Rules and Regulations” section of this
Environmental protection, Administrative practice and procedure, Air pollution control, Hazardous substances, Intergovernmental relations, Reporting and recordkeeping requirements.
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing a limited approval and limited disapproval of revisions to the Bay Area Air Quality Management District (BAAQMD) portion of the California State Implementation Plan (SIP). These revisions concern volatile organic compound (VOC) emissions from storage of organic liquids and leaking equipment at petroleum refineries, chemical plants, bulk plants and bulk terminals. We are proposing action on local rules that regulate these emission sources under the Clean Air Act as amended in 1990 (CAA or the Act). We are taking comments on this proposal and plan to follow with a final action.
Any comments must arrive by September 4, 2001.
Mail comments to Andy Steckel, Rulemaking Office Chief (AIR-4), U.S. Environmental Protection Agency, Region IX, 75 Hawthorne Street, San Francisco, CA 94105-3901.
You can inspect copies of the submitted SIP revisions and EPA's technical support documents (TSDs) at our Region IX office during normal business hours. You may also see copies of the submitted SIP revisions at the following locations:
Christine Vineyard, Rulemaking Office (AIR-4), U.S. Environmental Protection Agency, Region IX, (415) 744-1197.
Throughout this document, “we,” “us” and “our” refer to EPA.
Table 1 lists the rules addressed by this proposal with the dates that they were adopted by local air agencies and submitted by the California Air Resources Board (CARB).
On May 19, 2000, this rule submittal was found to meet the completeness criteria in 40 CFR part 51, appendix V, which must be met before formal EPA review.
Revisions to Rule 8-5, Storage of Organic Liquids, are intended to:
• Implement a control measure for slotted guide poles.
• Modify requirements for primary metallic-shoe type seals used in internal floating roof tanks containing organic liquids that produce ozone forming air pollutants.
Revisions to Rule 8-18, Equipment Leaks, are intended to:
• Consolidate the regulation of fugitives in a single rule, transferring provisions contained in District Rule 8-25, Pumps and Compressor Seals at Petroleum Refineries, Chemical Plants, Bulk Plants and Bulk Terminals, to Rule 8-18. District Rule 8-25 is being deleted.
• Provide a more stringent leak standard for pressure relief devices.
• Add compliance options to allow the use of new leak and detection and repair technology.
The TSDs have more information about these rules.
Generally, SIP rules must be enforceable (see section 110(a) of the Act), must require Reasonably Available Control Technology (RACT) for major sources in nonattainment areas (see section 182(a)(2)(A)), and must not relax existing requirements (see sections 110(l) and 193). The BAAQMD regulates an ozone nonattainment area (see 40 CFR part 81), so Rules 8-5 and 8-18 must fulfill RACT.
Guidance and policy documents that we used to define specific enforceability and RACT requirements include the following:
1. Portions of the proposed post-1987 ozone and carbon monoxide policy that concern RACT, 52 FR 45044, November 24, 1987.
2. “Issues Relating to VOC Regulation Cutpoints, Deficiencies, and Deviations; Clarification to Appendix D of November 24, 1987
3. “Control of Volatile Organic Emissions from Petroleum Liquid Storage in External Floating Roof Tanks,” EPA-450/2-78-047.
4. “Control of Volatile Organic Emissions from Petroleum Liquid Storage in Fixed Roof Tanks,” EPA-450/2-77-036.
5. “Control of Volatile Organic Compound Leaks from Synthetic Organic Chemical and Polymer Manufacturing Equipment,” EPA-450/3-83-006.
6. “Model Volatile Organic Compounds Rules for Reasonably Available Control Technology,” Office of Air Quality Planning and Standards, June 1992.
These rules improve the SIP by establishing more stringent emission limits and by implementing new control measures for slotted guide poles. These rules are largely consistent with the relevant policy and guidance regarding enforceability, RACT and SIP relaxations. Rule provisions which do not meet the evaluation criteria are summarized below and discussed further in the TSD.
These provisions conflict with section 110 and part D of the Act and prevent full approval of the SIP revision.
1. Rule 8-5 exempts sources from control requirements during certain startup, shutdown, and maintenance conditions in violation of EPA's 1999 guidance on excess emission during malfunctions, startup, and shutdown.
2. Rule 8-18 contains director's discretion in the allowance of compliance options and the use of new leak detection and repair technology without EPA approval.
As authorized in sections 110(k)(3) and 301(a) of the Act, EPA is proposing a limited approval of the submitted rules to improve the SIP. If finalized, this action would incorporate the submitted rules into the SIP, including those provisions identified as deficient. This approval is limited because EPA is simultaneously proposing a limited disapproval of the rules under section 110(k)(3). If this disapproval is finalized, sanctions will be imposed under section 179 of the Act unless EPA approves subsequent SIP revisions that correct the rule deficiencies within 18 months. These sanctions would be imposed according to 40 CFR 52.31. A final disapproval would also trigger the federal implementation plan (FIP) requirement under section 110(c). Note that the submitted rules have been adopted by the BAAQMD, and EPA's final limited disapproval would not prevent the local agency from enforcing them.
We will accept comments from the public on the proposed limited approval and limited disapproval for the next 30 days.
VOCs help produce ground-level ozone and smog, which harm human health and the environment. Section 110(a) of the CAA requires states to submit regulations that control VOC emissions. Table 2 lists some of the national milestones leading to the submittal of these local agency VOC rules.
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this proposed action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this proposed action is also not subject to Executive Order 32111, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This proposed action merely approves state law as meeting federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule proposes to approve pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). This rule also does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely approves a state rule implementing a federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This proposed rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant.
In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission
Environmental protection, Air pollution control, Hydrocarbons, Intergovernmental relations, Ozone, Reporting and recordkeeping requirements, Volatile organic compound.
42 U.S.C. 7401 et seq.
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing to create a new subpart E in 40 CFR part 180. This subpart will be titled Pesticide Chemicals Not Requiring a Tolerance or an Exemption from a Tolerance. It will contain a list of the pesticide chemicals (including, as appropriate, their limitations and use patterns) for which the Agency has determined that neither a tolerance nor an exemption from the requirement of a tolerance is needed under the Federal Food Drug and Cosmetic Act (FFDCA). This document also proposes to revoke two unlimited tolerance exemptions for the inert ingredient Rhodamine B. These tolerance exemptions were established under Section 408 of the FFDCA, 21 U.S.C. 346a. EPA is proposing to revoke these tolerances because all food-use products containing Rhodamine B have been voluntarily cancelled. Concurrent with the revocation of the two unlimited tolerances for Rhodamine B, the Agency is also proposing to designate the use of the inert (other) ingredient Rhodamine B as a dye for seed treatment only, a use for which neither a tolerance nor an exemption from the requirement of a tolerance is needed. This determination is based on the Agency's review and evaluation of submitted data, which indicated that there was no uptake of Rhodamine B when used as a dye for seed treatment. The Agency is acting on its own initiative. These regulatory actions are part of the tolerance reassessment requirements of the Federal Food, Drug, and Cosmetic Act (FFDCA) section 408(q), as amended by the Food Quality Protection Act (FQPA) of 1996. By law, EPA is required to reassess 66% of the tolerances in existence on August 2, 1996, by August 2002, or about 6,400 tolerances. The regulatory actions proposed in this document, the proposed revocation of two tolerance exemptions, would be counted toward the August 2002 deadline.
Comments, identified by docket control number OPP-301026, must be received on or before October 1, 2001.
Comments may be submitted by mail, electronically, or in person. Please follow the detailed instructions for each method as provided in Unit I. of the
Kathryn Boyle, Registration Division (7505C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: 703-305-6304; fax number: 703-305-0599; e-mail address: boyle.kathryn@epa.gov.
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected categories and entities may include, but are not limited to:
This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this table could also be affected. The North American Industrial Classification System (NAICS) codes are provided to assist you and others in determining whether or not this action might apply to certain entities. If you have questions regarding the applicability of this action to a particular entity, consult the person listed under
1.
2.
You may submit comments through the mail, in person, or electronically. To ensure proper receipt by EPA, it is imperative that you identify docket control number OPP-301026 in the subject line on the first page of your response.
1.
2.
3.
Do not submit any information electronically that you consider to be CBI. You may claim information that you submit to EPA in response to this document as CBI by marking any part or all of that information as CBI. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2. In addition to one complete version of the comment that includes any information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public version of the official record. Information not marked confidential will be included in the public version of the official record without prior notice. If you have any questions about CBI or the procedures for claiming CBI, please consult the person listed under
You may find the following suggestions helpful for preparing your comments:
1. Explain your views as clearly as possible.
2. Describe any assumptions that you used.
3. Provide copies of any technical information and/or data you used that support your views.
4. If you estimate potential burden or costs, explain how you arrived at the estimate that you provide.
5. Provide specific examples to illustrate your concerns.
6. Offer alternative ways to improve the proposed rule or collection activity.
7. Make sure to submit your comments by the deadline in this document.
8. To ensure proper receipt by EPA, be sure to identify the docket control number assigned to this action in the subject line on the first page of your response. You may also provide the name, date, and
1. The Agency is creating in 40 CFR part 180 a new subpart E to be entitled Pesticide Chemicals Not Requiring a Tolerance or an Exemption from a Tolerance
Under the Federal Food, Drug, and Cosmetic Act (FFDCA), the Agency regulates pesticide chemicals in food by establishing tolerances or exemptions from the requirement of a tolerance. A pesticide chemical needs a tolerance or an exemption from the requirement of a tolerance if the pesticide is used in a manner which has a reasonable likelihood of producing residues in food. In practice, EPA presumes that a pesticide used on, in, or near growing crops, livestock or food has a reasonable likelihood of resulting in residues in or on food. However, there are instances when a pesticide chemical requires neither a tolerance nor an exemption from the requirement of a tolerance. These chemicals and uses have not been listed in 40 CFR part 180. However, to insure consistent treatment of such chemicals, EPA has decided to create this new subpart to contain these chemicals.
One of the uses of this new subpart will be to list pesticide chemicals that qualify under EPA's “Threshold of Regulation Policy - Deciding Whether a Pesticide with a Food-Use Pattern Needs a Tolerance” as announced in the
Another of the uses of this subpart will be to list pesticide chemicals that are actually used in or on food crops, but that have been determined to not have a reasonable likelihood of producing residues in food (generally referred to as a “non-food use”). An example of such a use would be inert ingredients such as dyes that are used in seed treatments. The determination that a seed treatment use is non-food is generally made after reviewing the results of a radio-labeled magnitude of the residue (uptake) study that can confirm that residues of the pesticide chemical will not be present at levels greater than 5 parts per billion (ppb).
Since seed treatment dyes can be included in this new subpart, minor revisions to 40 CFR 153.155(c) are also proposed. This section currently specifies that dyes used in seed treatment are contained in 40 CFR 180.1001 (c) and (d), and thus requires modifications to include the seed treatment uses that could be included in the proposed subpart E.
2. With the establishment of the new subpart E, EPA is proposing two amendments to its tolerance regulations. First, on its own initiative, the Agency is proposing that 40 CFR 180.1001 be amended by deleting in paragraphs (c) and (e) the current exemption from the requirement of a tolerance without limitation for residues of Rhodamine B (CAS No. 81-88-9). Second, again on its own initiative, EPA is proposing to
This proposed rule is issued pursuant to section 408(e) of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a(e), as amended by the Food Quality Protection Act of 1996 (FQPA) (Public Law 104-170). Section 408(e) of FFDCA authorizes EPA to establish, modify, or revoke tolerances, and exemptions from the requirement of a tolerance for residues of pesticide chemicals in or on raw agricultural commodities and processed foods. Without a tolerance or tolerance exemption, food containing pesticide residues is considered to be unsafe and therefore “adulterated“ under section 402(a) of the FFDCA. If food containing pesticide residues is found to be adulterated, the food may not be distributed in interstate commerce (21 U.S.C. 331(a) and 342(a).
For a pesticide to be sold and distributed, the pesticide must not only have the appropriate tolerances or tolerance exemptions under FFDCA, but also must be registered with EPA under section 3 or section 24 or approved by EPA under section 5 or section 18 (for a specific use pattern) of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), as amended by FQPA (7 U.S.C. 136 et. seq.) Registration is a licensing process in which EPA evaluates each proposed product, its uses, and its labeling to determine whether it meets the standard for registration in FIFRA. That standard states that, for a registration to be approved, EPA must determine that the pesticide product, when used in accordance with its intended uses and with widespread and commonly recognized practice, will not cause unreasonable adverse effects on the environment.
EPA proposes that these actions become effective immediately following publication of the final rule in the
By law, EPA is required to reassess 66% or about 6,400 of the tolerances in existence on August 2, 1996, by August 2002. This proposed rule proposes to revoke two tolerance exemptions. Therefore, upon publication of the final rule, two tolerance reassessments will be counted toward the August 2002 review deadline of FFDCA section 408(q), as amended by FQPA in 1996.
Rhodamine B (xanthylium, 9-(2-carboxyphenyl)-3,6-bis(diethylamino)-,chloride, or Violet 10, or D&C Red No. 19) is a List 1 inert ingredient. The criteria used to place chemicals on List 1 were carcinogenicity; adverse reproductive effects, neurotoxicity or other chronic effects, or developmental toxicity. These effects should have been demonstrated in laboratory or human studies and the data subject to peer review. Rhodamine B is a carcinogen, and therefore met one of the criteria for classification as a List 1 inert ingredient.
A Data Call-In (DCI) Notice was issued in February 1993 requiring that registrants whose products contained Rhodamine B generate additional data to support continued registration of their products. In response to the 1993 DCI the Rhodamine B Seed Treatment Coalition was formed by member companies Gustafson LLC; Pioneer Hi-Bred International; Platte Chemical Co. Inc.; Trace Chemical Co. Inc.; Uniroyal Chemical Co., Inc; and Wilbur-Ellis Co. The Coalition's objective was to support the use of Rhodamine B for use as a dye for seed treatment only. Seed treatment dyes are used to distinguish pesticide-treated seeds that are sold/distributed in commerce from seeds used as food for humans or feed for animals. Generally the Agency assumes that a seed treatment use is a food-use, that is, the use is likely to result in residues in or on food.
The members of the Rhodamine B Seed Treatment Coalition submitted to the Agency a radiolabeled magnitude of the residue study in which Rhodamine B was used to dye seeds that were then planted and grown to harvest. The radiolabeled Rhodamine B was applied to the treated seed at both the proposed use rate and twice the proposed use rate. The Agency's review and evaluation of the study indicated that any residues of Rhodamine B present in the harvested edible portions of the food/feed would be at levels less than 1 ppb. This is less than the 5 ppb level that is generally used to define “no uptake of residues”or a non-food use. Since there was no uptake of Rhodamine B in a radiolabeled residue study, there is no reasonable expectation of finite residues of Rhodamine B in food or feed crops resulting from the use of Rhodamine B as a dye in seed treatment. The Agency concludes that Rhodamine B when used as a dye in seed treatment is a non-food use, that is, the use is not likely to result in residues in food or feed. Therefore, neither a tolerance nor a tolerance exemption is needed.
Previously all dyes used in seed treatments were listed in 40 CFR 180.1001(c) and (d), which are listings of food-use inert ingredients that are exempted from the requirement of a tolerance. However, the determination that Rhodamine B when used as a seed treatment is unlikely to result in residues in food/feed, means that neither a tolerance nor a tolerance exemption is required. Previously, these chemicals and uses would not have been listed in 40 CFR part 180. However, to insure consistent treatment of such chemicals, EPA has decided to create subpart E to contain these chemicals and immediately populate the subpart with Rhodamine B with a limitation for use as a dye for seed treatment only.
The Office of Management and Budget (OMB) has exempted these types of actions from review Under Executive Order 12866, entitled Regulatory Planning and Review (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” subject to review by the Office of Management and Budget (OMB).
This proposed rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq., or impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Public Law 104-4). Nor does it require
This proposed rule establishes a new subpart in the Code of Federal Regulations. Under section 605(b) of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.), the Agency hereby certifies that the proposed action to reorganize 40 CFR part 180 will not have significant negative economic impact on a substantial number of small entities. Creating a new subpart does not have a substantive effect and hence causes no impact.
This proposed rule also revokes two tolerance exemptions, and establishes the use of Rhodamine B as a dye for seed treatment only. The revoked tolerance exemptions apply to pesticide products that have been voluntarily canceled or reformulated using inert ingredients other than Rhodamine B. EPA expects that any existing stocks of these products have been exhausted for some time. Pursuant to the Regulatory Flexibility Act, the Agency previously assessed whether revocations of tolerances or tolerance exemptions might significantly impact a substantial number of small entities and concluded that, as a general matter, these actions do not impose a significant economic impact on a substantial number of small entities. This analysis was published on December 17, 1997 (62 FR 66020), and was provided to the Chief Counsel for Advocacy of the Small Business Administration. Taking into account this analysis, and available information concerning the pesticide chemical (inert ingredient) listed in this rule, I certify that this action will not have a significant economic impact on a substantial number of small entities. Furthermore, the Agency knows of no extraordinary circumstances that exist as to the present revocation that would change EPA's previous analysis. Generally, when considering an active ingredient, as per the 1997 notice, EPA would review its available data on imports and foreign pesticide usage. These data bases (which focus on active ingredients) would then be used, as appropriate, to conclude that there is a reasonable international supply of food not treated with the canceled pesticide. Because these data are less readily available for inert ingredients, the finding for Rhodamine B is based primarily on the fact that the chemical has been replaced in U.S. registered pesticide products that previously contained Rhodamine B (except for seed treatments). Most likely, Rhodamine B has also been replaced in pesticides sold and used in foreign countries exporting food products to the United States. Given that Rhodamine B is a dye, and that substitution of one dye for another in pesticide products does not usually require a significant amount of reformulation effort, it remains appropriate to conclude that there is a reasonable international supply of food not treated with Rhodamine B.
In addition, the Agency has determined that this action will not have a substantial direct effect on States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, entitled
For these same reasons, the Agency has determined that this rule does not have any “tribal implications” as described in Executive Order 13175, entitled
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
7 U.S.C. 136 et. seq.
(c) EPA-approved dyes for seed treatment are listed in:
(1) Section 180.1001(c) and (d) if an exemption from the requirement of a tolerance has been established.
(2) Section 180.2010 if EPA has determined that residues of the dye will be present, if at all, at levels that are below the threshold of regulation.
(3) Section 180.2020 if EPA has determined that no tolerance or exemption from the requirement of a tolerance is needed as a result of a determination by EPA that the use is unlikely to result in residues in food/feed.
21 U.S.C. 321(q), 346(a) and 371.
This subpart sets forth the pesticide chemicals for use in agricultural or other food-related settings for which neither a tolerance nor an exemption is deemed to be needed by EPA.
(a) “Food uses” are the uses of a pesticide chemical that are likely to yield residues in food or feed crops, meat, milk, poultry or eggs.
(b) “Non-food uses” are those uses that are not likely to yield residues in food or feed crops, meat, milk, poultry or eggs.
The following pesticide chemical uses do not need a tolerance or exemption from the requirement of a tolerance based on EPA's determination that they do not result in residues in or on food.
Federal Communications Commission.
Proposed rule.
The Commission requests comments on a petition filed by ACME Television Licenses of New Mexico, LLC, licensee of station KASY-TV, NTSC channel 50, Albuquerque, New Mexico, requesting the substitution of DTV channel 45 for station KASY-TV's assigned DTV channel 51c. DTV Channel 45 can be allotted to Albuquerque, New Mexico, in compliance with the principle community coverage requirements of Section 73.625(a) at reference coordinates (35-12-48 N. and 106-27-00 W.). As requested, we propose to allot DTV Channel 45 to Albuquerque with a power of 245 and a height above average terrain (HAAT) of 1287 meters.
Comments must be filed on or before September 17, 2001, and reply comments on or before October 2, 2001.
Federal Communications Commission, 445 12th Street, SW., Room TW-A325, Washington, DC 20554. In addition to filing comments with the FCC, interested parties should serve the petitioner, or its counsel or consultant, as follows: Harold K. McCombs, Dickstein, Shapiro, Morin & Oshinsky, LLP, 2101 L Street NW., Washington, DC 20037 (Counsel for ACME Television Licenses of New Mexico, LLC).
Pam Blumenthal, Mass Media Bureau, (202) 418-1600.
This is a synopsis of the Commission's Notice of Proposed Rule Making, MM Docket No. 01-160, adopted July 24, 2001, and released July 27, 2001. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Reference Center 445 12th Street, SW., Washington, DC. The complete text of this decision may also be purchased from the Commission's copy contractor, International Transcription Services, Inc., (202) 857-3800, 1231 20th Street, NW., Washington, DC 20036.
Provisions of the Regulatory Flexibility Act of 1980 do not apply to this proceeding.
Members of the public should note that from the time a Notice of Proposed Rule Making is issued until the matter is no longer subject to Commission consideration or court review, all
For information regarding proper filing procedures for comments, see 47 CFR 1.415 and 1.420.
Television, Digital television broadcasting.
For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 73 as follows:
1. The authority citation for part 73 continues to read as follows:
47 U.S.C. 154, 303, 334, and 336.
2. Section 73.622(b), the Table of Digital Television Allotments under New Mexico is amended by removing DTV Channel 51c and adding DTV Channel 45 at Albuquerque.
Research and Special Programs Administration (RSPA), DOT.
Proposed rule; extension of time to file comments and public meeting announcement.
On June 14, 2001, RSPA published a notice of proposed rulemaking to clarify the applicability of the Hazardous Materials Regulations to specific functions and activities, including hazardous materials loading, unloading, and storage operations. We are extending until November 30, 2001, the period for filing comments to the proposed rule. In addition, we are conducting two public meetings to facilitate public comment on the proposed rule. One public meeting is scheduled for September 14, 2001, in Washington, DC; a second public meeting is scheduled for October 30, 2001, in Diamond Bar, California.
The Dockets Management System is located on the Plaza level of the Nassif Building at the Department of Transportation at the above address. You can review public dockets there between the hours of 9:00 a.m. and 5:00 p.m., Monday through Friday, except federal holidays. You can also review comments on-line at the DOT Dockets Management System web site at “http://dms.dot.gov/.”
Michael Johnsen (202) 366-8553, Office of Hazardous Materials Standards, Research and Special Programs Administration; or Susan Gorsky (202) 366-8553, Office of Hazardous Materials Standards, Research and Special Programs Administration. If you wish to speak at one of the public meetings, you should contact Mr. Johnsen.
On June 14, 2001, the Research and Special Programs Administration (RSPA, we) published a notice of proposed rulemaking (NPRM) (66 FR 32420) under Docket RSPA-98-4952 (HM-223) to clarify the applicability of the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180) to specific functions and activities, including hazardous materials loading and unloading operations and storage of hazardous materials during transportation. The HM-223 rulemaking has four overall goals. First, we want to maintain nationally uniform standards applicable to functions performed in advance of transportation to prepare hazardous materials for transportation. Second, we want to maintain nationally uniform standards applicable to transportation functions. Third, we want to distinguish functions that are subject to the HMR from functions that are not subject to the HMR. Finally, we want to clarify that facilities within which HMR-regulated functions are performed may also be subject to federal, state, or local regulations governing occupational safety and health or environmental protection.
To achieve these goals, the NPRM proposes to list in the HMR pre-transportation and transportation functions to which the HMR apply. Pre-transportation functions are functions performed to prepare hazardous materials for movement in commerce by persons who offer a hazardous material for transportation or cause a hazardous material to be transported. Transportation functions are functions performed as part of the actual movement of hazardous materials in commerce, including loading, unloading, and storage of hazardous materials that is incidental to their movement. The NPRM also proposes to clarify that “transportation in commerce,” for purposes of applicability of the HMR, begins when a carrier takes possession of a hazardous material and continues until the carrier delivers the package containing the hazardous material to its destination as indicated on shipping papers. In addition, the NPRM proposes to include in the HMR an indication that facilities at which functions regulated by the HMR occur may also be subject to applicable standards and regulations of other federal agencies and state, local, and tribal governments. Finally, the NPRM proposes to include in the HMR the statutory criteria under which non-federal governments may be precluded from regulating in certain areas under the preemption provisions of the federal hazardous materials transportation law (49 U.S.C. 5101
To facilitate public comment on the NPRM, we are hosting two public meetings to discuss the proposed changes. The first public meeting is scheduled for September 14, 2001, in Washington, DC. The second public meeting will be in Diamond Bar, California, on October 30, 2001. To allow sufficient time to conduct the meetings and for interested parties to submit comments on the NRPM after the public meetings, we are extending the comment period until November 30, 2001.
The public meetings will provide an informal forum for interested persons to offer comments on the HM-223 NPRM. A transcript for each meeting will be prepared and submitted to the HM-223 docket. We anticipate significant public interest in this rulemaking; therefore, we ask that you limit your remarks to 10 minutes to assure that all participants have an opportunity to speak. The meetings may conclude earlier than scheduled if all persons wishing to offer comments have been heard.
If you plan to submit a written statement, you should submit 5 copies of the statement at the meeting. If you wish to speak at one of the public meetings, please contact Michael Johnsen at 202-366-8553 as soon as possible.
National Highway Traffic Safety Administration (NHTSA), DOT.
Extension of comment period for a notice of proposed rulemaking (NPRM).
This document extends the comment period on an NPRM that proposed a new Federal motor vehicle safety standard regulating new radiator caps and coolant reservoir caps, and new passenger cars, multipurpose passenger vehicles and light trucks with such caps. We are taking this action in response to a petition from the Alliance of Automobile Manufacturers.
Comments on DOT Docket No. NHTSA-01-9765 must be received by September 28, 2001.
Comments should refer to DOT Docket No. NHTSA-01-9765 and be submitted to: Docket Management, Room PL-401, 400 Seventh Street, SW., Washington, DC, 20590.
You may call the Docket at 202-366-9324. You may visit the Docket from 10 a.m. to 5 p.m., Monday through Friday, except on Federal holidays.
For non-legal issues, you may call Mr. Kenneth O. Hardie, Office of Crash Avoidance Standards at (202) 366-6987. His FAX number is (202) 493-2739.
For legal issues, you may call Ms. Dorothy Nakama, Office of the Chief Counsel at (202) 366-2992. Her FAX number is (202) 366-3820.
You may send mail to both of these officials at National Highway Traffic Safety Administration, 400 Seventh St., SW., Washington, DC, 20590.
On June 1, 2001, we (NHTSA) published in the
In a letter dated July 2, 2001, the Alliance of Automobile Manufacturers (the Alliance) petitioned us for an extension of the comment period. Members of the Alliance include BMW Group, DaimlerChrysler, Fiat, Ford Motor Company, General Motors, Isuzu, Mazda, Mitsubishi Motors, Nissan, Porsche, Toyota, Volkswagen, and Volvo. The letter stated that the Alliance “has conducted a preliminary review of the Radiator and Coolant Reservoir Caps, Venting of Motor Vehicle Coolant Systems—Notice of Proposed Rulemaking” and asked for an additional 30 days to comment on the NPRM.
The Alliance gave two reasons for why it needed the extra time. First, during the “critical time” before which the comments are due, some Alliance members will be “on extended shutdown” and would therefore not be able to sufficiently participate in the formulation of the Alliance's comments. Second, the Alliance noted that the NPRM and Preliminary Regulatory Evaluation both reference testing that we had conducted at NHTSA's Vehicle Research and Test Center (VRTC) in East Liberty, Ohio. Although the NPRM said that the test data would be docketed, as of July 2, 2001, the test data were not yet available for public inspection.
Because we agree with the Alliance that test results should be available to persons wishing to comment on the NPRM, we have decided that it is in the public interest to grant the petitioner's request. The test results are on videotape and will be available for review at: NHTSA/FHWA National Crash Analysis Center, George Washington University (GWU), VIRGINIA CAMPUS 20101 Academic Way, NCAC Library, Ashburn, VA 20147.
Because it cannot be scanned, this videotape is not available for review through the on-line DOT Docket Management System web site. We are in the process of making arrangements with GWU to ensure public accessibility to the videotape. When public access is assured, we will post a notice of “Availability of Non-Scannable Items” in DOT Docket No. NHTSA-01-9765. GWU contact persons for the videotape are Ms. K.D. Agrali or Ms. Jenni Behrs, GWU Film Technicians. Their telephone number is: (703) 726-8236.
We realize that it may take some interested parties additional time to go to GWU's Ashburn campus to review the videotape, and have therefore decided to allow more time for public comment than that requested by the Alliance. Accordingly, the public comment closing date for DOT Docket NHTSA-01-9765 is extended from July 31, 2001 to Friday, September 28, 2001.
49 U.S.C. 322, 30111, 30115, 30117, and 30166; delegation of authority at 49 CFR 1.50.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of preliminary determination; draft status review; request for comments.
The National Marine Fisheries Service (NMFS) conducted a status review of the Gulf of Maine/Bay of Fundy (GOM/BOF) stock of harbor porpoise (
Comments must be received on or before 5 pm EST September 4, 2001.
Comments on this action should be sent to: Chief, Marine Mammal Division, National Marine
Emily Hanson, Office of Protected Resources, 301-713-2322 ext. 101; Kim Thounhurst, Northeast Region, 978-281-9138; or Diane Borggaard, Southeast Region, 727-570-5312. Individuals who use a telecommunications device for the deaf may call the Federal Information Relay Service at 1-800-877-8339 between 8 a.m. and 4 p.m. Eastern time, Monday through Friday, excluding Federal holidays.
On September 18, 1991, the Sierra Club Legal Defense Fund, on behalf of the International Wildlife Coalition and 12 other organizations, submitted a petition to list the harbor porpoise as threatened under the Endangered Species Act (ESA). NMFS published a notice of receipt of petition to list the GOM/BOF stock as threatened on December 13, 1991 (56 FR 65044). On January 7, 1993, NMFS published a proposed rule to list the GOM/BOF stock of harbor porpoise as threatened under the ESA (58 FR 3108). The proposed listing was based on information demonstrating that: (a) the rate of bycatch of harbor porpoise in commercial gillnet fisheries (extending from the Bay of Fundy, Canada, south throughout the Gulf of Maine) might reduce this population to the point where it would become threatened throughout all or a portion of its range; and, (b) there were no regulatory measures in place to reduce this bycatch. NMFS extended the comment period on the proposed rule until August 7, 1993 (58 FR 17569, April 5, 1993) to hold public hearings. On November 8, 1993 (58 FR 59230), the date for the final determination on the proposal to list was extended for six months to allow for further data collection and analyses about harbor porpoise stock structure. On July 15, 1994, NMFS reopened the comment period for 30 days to allow for public comment on the new analyses (59 FR 36158).
The New England Harbor Porpoise Working Group (HPWG), an informal stakeholder group, met on July 21, 1994, to discuss harbor porpoise bycatch and the ESA listing proposal. As a result of the concerns expressed at that meeting, NMFS again extended the comment period on the proposed rule until September 11, 1994 (59 FR 41270). At that time, NMFS also decided to wait for the 1995 bycatch data prior to proceeding with a listing determination.
NMFS had not yet made a final determination when, in 1996, Congress imposed a 1-year moratorium on listing species under the ESA. During 1997 and 1998, NMFS kept the listing issue under review in light of new population abundance and bycatch data, ongoing New England Fishery Management Council (NEFMC) and NMFS fishery management efforts to reduce harbor porpoise bycatch, and the Marine Mammal Protection Act (MMPA) Section 118 Take Reduction Team (TRT) process established pursuant to the 1994 amendments to the MMPA.
On October 22, 1998, NMFS reopened the comment period on the proposed rule to list the GOM/BOF harbor porpoise as a threatened species under the ESA (63 FR 56596). This action was taken because of the amount of time that had passed since the close of the previous comment period and to allow for the review of the best scientific information available.
The listing determination was also the subject of litigation with the Center for Marine Conservation, the Humane Society of the United States, and the International Wildlife Coalition (
Pursuant to the settlement agreement in
The settlement agreement also requires that NMFS make the draft status review available for a 30-day public comment period on or before July 31, 2001. This document complies with that requirement.
This status review focuses on new information and analyses available since publication of the January 5, 1999, withdrawal of the proposed rule. For detailed information on the data and analyses prior to January 5, 1999, refer to the Federal Register publications cited above. Additionally, detailed information about the GOM/BOF stock of harbor porpoise is available in NMFS U.S. Atlantic and Gulf of Mexico Marine Mammal Stock Assessment Reports.
For this status review and the preliminary determination not to list the GOM/BOF harbor porpoise under the ESA, NMFS considered stock definition information, population abundance, bycatch data, NEFMC/NMFS ongoing fishery management efforts to reduce harbor porpoise bycatch, and progress in bycatch reduction under the Harbor Porpoise Take Reduction Plan (HPTRP) since the January 5, 1999, withdrawal of the proposed rule to list the GOM/BOF population as threatened under the ESA.
Gaskin (1984, 1992) proposed that there were four separate populations of harbor porpoise in the western North Atlantic: the Gulf of Maine/Bay of Fundy population; the Gulf of St. Lawrence population; the Newfoundland population; and the Greenland population. Analyses involving mitochondrial DNA (Wang,
Nuclear microsatellite markers have also been applied to samples from the four populations, but failed to detect significant population sub-division in either males or females (Rosel,
Analyses since the 1998 status review continue to support the hypothesis of four separate populations of harbor porpoise in the western North Atlantic.
To estimate the population size of harbor porpoises in the Gulf of Maine/Bay of Fundy region, four line-transect sighting surveys were conducted during the summers of 1991, 1992, 1995, and 1999. The abundance estimates were 37,500 harbor porpoises in 1991 [CV=0.29 and 95-percent confidence interval (CI)=26,700-86,400] (Palka, 1995a); 67,500 harbor porpoises in 1992 (CV=0.23 and 95-percent CI=32,900-104,600) (Palka, 1996); 74,000 harbor porpoises in 1995 (CV=0.20 and 95-percent CI=40,900-109,100) (Palka, 1996); and 89,700 harbor porpoises in 1999 (CV=0.22 and 95-percent CI=53,400-150,900) (Palka, 2000). The inverse variance weighted-average abundance estimate (Smith,
The best abundance estimate of the Gulf of Maine/Bay of Fundy harbor porpoise stock is 89,700 (CV=0.22) animals. The 1999 estimate is considered to be the best available because it is the most current and because the 1999 survey discovered portions of the harbor porpoise range not covered in previous surveys.
Analyses are underway to determine whether information necessary to detect a trend in abundance can be obtained from the four NMFS surveys. Until such a trend can be identified, it is not possible to state conclusively that the abundance of this stock has increased during any time in the survey period.
The PBR level is the product of minimum population size, one-half the maximum net productivity rate, and a “recovery” factor (MMPA Sec. 3. 16 U.S.C. 1362, Wade and Angliss, 1997). Based on the 1999 survey, NMFS has increased the value for the minimum population size to 74,695 (CV=0.22) in the draft 2001 Stock Assessment Report (SAR), currently undergoing public review (66 FR 30706, June 7, 2001). The maximum net productivity rate is 0.04, the default value for cetaceans. The “recovery” factor, which accounts for endangered, depleted, threatened stocks, or stocks of unknown status relative to optimum sustainable population (OSP) is assumed to be 0.5 because this stock is of unknown status. Due to the increased minimum population estimate, NMFS has also increased the PBR for the GOM/BOF harbor porpoise stock from 483 to 747 in the draft 2001 SAR. NMFS is using a PBR of 747 for the purposes of this status review.
The U.S. average annual mortality estimate prior to implementation of the HPTRP (1994-1998) was 1,521 (CV=0.10) harbor porpoises from U.S. fisheries and 57 harbor porpoises from Canadian fisheries. GOM/BOF harbor porpoise takes have been documented in the U.S. Northeast sink gillnet and Mid-Atlantic coastal gillnet fisheries and in the Canadian Bay of Fundy sink gillnet and herring weir fisheries. Data to estimate the mortality and serious injury of harbor porpoise comes from U.S. and Canadian Sea Sampling Programs and from records of strandings in U.S. waters. Implementation of the HPTRP and related Fishery Management Plan (FMP) restrictions changed the U.S. gillnet fisheries substantially, and therefore only mortality estimates for 1999 and 2000, which represents the time since implementation of the HPTRP and FMP restrictions, are included in this analysis. The total annual estimated average human-caused mortality for 1999 is 366 harbor porpoises, derived from the following four components: 323 harbor porpoises (CV=0.25) from U.S. fisheries using observer data; approximately 20 harbor porpoises (preliminary estimate with unknown CV) from Canadian fisheries using observer data; 19 harbor porpoises from unknown U.S. fisheries using strandings data; 1 harbor porpoise from unknown human-caused mortality in the U.S. (a mutilated stranded harbor porpoise); and 3 documented mortalities from Canadian herring weirs.
A preliminary estimate of harbor porpoise bycatch in U.S. fisheries for 2000 indicates that 529 harbor porpoises were taken in the U.S. fisheries in 2000, including 507 (CV=0.37) estimated takes from the Northeast sink gillnet fishery, 21 (CV=0.76) estimated takes from the Mid-Atlantic coastal gillnet fishery, and 1 take from an unknown fishery as indicated by stranding data.
The 2000 harbor porpoise bycatch estimate for Canadian fisheries is not available at this time. However, preliminary raw data indicate that in 549 gillnets observed, 8 harbor porpoises were observed taken.
The analysis performed by Wade (1998) and presented in the October 22, 1998, proposed rule was updated using new estimates of abundance and mortality for the GOM/BOF harbor porpoise stock. Using the 1999 survey abundance estimate (89,700 animals) and the 1999 mortality estimate (366 animals), there was no chance of extinction (0.0) in 100 years. A summary of parameter values and distributions used in the simulations and results of the analysis can be found in Wade (2001).
As defined in 50 CFR 424.02 of the regulations implementing the ESA, an “endangered species” is a species that is in danger of extinction throughout all or a significant portion of its range. Similarly, a “threatened species” is a species that is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. As described in section 4(a)(1) of the ESA, the Secretaries of Commerce or Interior determine whether any species is an endangered species or threatened species because of any of the following factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial,
The GOM/BOF stock of harbor porpoise is found in U.S. and Canadian Atlantic waters. During the summer (July to September), harbor porpoise are concentrated in the northern Gulf of Maine and southern Bay of Fundy region, generally in waters less than 150 meters deep (Gaskin 1977; Kraus
Although the shoreline bordering the nearshore habitat of harbor porpoise along the eastern U.S. coastline is developed in many areas and may have affected coastal habitat, there is no new or additional evidence to indicate that shoreline development has affected the habitat of harbor porpoise in a manner that has contributed to a decline of the GOM/BOF population or that the range of this species has changed significantly as a result of shoreline development or change in coastal habitat.
This section discusses serious injury/mortality of harbor porpoise incidental to the operation of the Northeast sink gillnet and Mid-Atlantic coastal gillnet fisheries, unknown U.S. fisheries as suggested by stranding data, the Canadian Bay of Fundy groundfish gillnet and herring weir fisheries, and takes that may have occurred incidental to scientific research activities. It is unknown whether lethal takes of harbor porpoises are occurring incidental to recreational fishing activities. Detailed information about human-caused mortality to harbor porpoise is available in the GOM/BOF Harbor Porpoise chapter of the U.S. Atlantic and Gulf of Mexico Marine Mammal Stock Assessment Reports for 2000 and draft report for 2001.
Before 1998, most of the documented harbor porpoise takes from U.S. fisheries were from the Northeast sink gillnet fishery. Prior to the present Sea Sampling Program and fishing effort reporting, Gilbert and Wynne (1985, 1987), using rough estimates of fishing effort, calculated that a maximum of 600 harbor porpoises were killed annually in this fishery in the Gulf of Maine. NMFS started an observer program in 1990 to investigate marine mammal takes in the Northeast sink gillnet fishery. Summing all years, there were 452 harbor porpoise mortalities observed in this fishery between 1990 and 2000 and one animal released alive and uninjured. Estimated annual bycatch (CV in parentheses) from those observed takes in this fishery during 1990-1998 was 2,900 in 1990 (0.32); 2,000 in 1991 (0.35); 1,200 in 1992 (0.21); 1,400 in 1993 (0.18) (Bravington and Bisack, 1996; CUD 1994); 2,100 in 1994 (0.18); 1,400 in 1995 (0.27) (Bisack, 1997a); 1,200 (0.25) in 1996; 782 (0.22) in 1997; and 332 (0.46) in 1998. (The increase in the 1998 CV is assumed to result from the small number of observed takes.)
Average estimated harbor porpoise mortality and serious injury in the Northeast sink gillnet fishery before implementation of the Take Reduction Plan was 1,163 (0.11) animals per year. In 1999 and 2000, estimates of harbor porpoise serious injury and mortality were 270 animals (CV=0.28) and 507 animals (CV=0.37), respectively. The 2-year average estimate of serious injury/mortality for this fishery is 389 animals (CV=0.26) per year.
NMFS started an observer program in the Mid-Atlantic coastal gillnet fishery in July of 1993. This fishery, which extends from North Carolina to New York, is a combination of small vessel fisheries that target a variety of fish species. No harbor porpoises were observed taken in the Mid-Atlantic coastal gillnet fishery during 1993 and 1994. From 1995 through 2000, 114 harbor porpoises were observed taken in this fishery. Annual average estimated harbor porpoise mortality and serious injury from the Mid-Atlantic coastal gillnet fishery before implementation of the HPTRP (1995-1998) was 358 animals (CV=0.20). In 1999 and 2000, the estimated harbor porpoise serious injury and mortality attributable to this fishery was 53 animals (CV=0.49) and 21 animals (CV=0.76), respectively. The 2-year average estimate of serious injury/mortality for this fishery is 37 animals (CV=0.41) per year. New genetic data indicate that more than one population of harbor porpoise occurs in the mid-Atlantic in the winter; therefore, it is possible that some of the takes are not from the GOM/BOF stock of harbor porpoise.
The NMFS strandings and entanglement database contains 228 reports of stranded harbor porpoises during 1999. The stranded carcasses were examined for signs of fishery interaction and other human impacts. Of the animals for which a determination could be made, evidence of fishery interaction involving gillnet gear was found on 38. Of the 38 fishery-interaction strandings, it was determined that 19 were in areas and times that were not included in mortality estimates derived from observer data. Twenty-six harbor porpoise mortalities were reported from the database in 2000. Of these 26, it was determined that the cause of death of one animal was from fishery interactions and that this event was not duplicative of the observed take estimate for the stratum in which the stranding occurred.
An observer program was implemented in the summer of 1993 in the Canadian Bay of Fundy Sink Gillnet Fishery. Average estimated harbor porpoise mortality from 1995 to 1999 was 36 animals per year; the mortality from 2000 has not yet been estimated. An estimate of variance is not possible.
Harbor porpoises are taken frequently in Canadian herring weirs, although a program has been implemented to reduce the mortality occurring from these takes. There have been no efforts to observe the U.S. component of this fishery and no takes reported from opportunistic platforms. Average estimated harbor porpoise mortality in the Canadian BOF herring weir fishery from 1995 to 1999 was 2.8 animals per year. The mortality from 2000 has not yet been estimated. An estimate of variance is not possible.
Evidence of disease and predation on individuals of the GOM/BOF harbor
This portion of the status review evaluates whether current regulatory mechanisms are adequate to prevent impacts that could result in a determination that the Gulf of Maine/Bay of Fundy (GOM/BOF) harbor porpoise population is threatened or endangered. NMFS’ proposed listing (58 FR 3108, January 7, 1993), revised proposed listing (63 FR 56596, October 22, 1998), and final determination (64 FR 465, January 5, 1999) included analyses of regulatory mechanisms in place prior to implementation of the Harbor Porpoise Take Reduction Plan (HPTRP). This document focuses only on the effect of the HPTRP and other regulatory actions taken since the January 5, 1999, final determination.
The January 7, 1993, proposal to list harbor porpoise as threatened was based on high levels of mortality of harbor porpoise incidental to commercial fishing and the inadequacy of regulatory mechanisms to address that mortality. The final 1999 determination not to list harbor porpoise was based on a finding that the bycatch reduction mechanisms built into the HPTRP, the Northeast Multispecies FMP, and the Canadian Harbor Porpoise Conservation Strategy provided adequate regulatory mechanisms to deal with high levels of mortality. The bycatch reduction levels built into these measures were analyzed in the January 5, 1999,
The key regulatory mechanism specifically addressing harbor porpoise bycatch in U.S. commercial fisheries is the HPTRP, which was published pursuant to Section 118 of the MMPA on December 2, 1998 (63 FR 66464). In addition to measures implemented through the HPTRP, NMFS also implemented time/area closures for rebuilding groundfish stocks under the Multispecies FMP that would also benefit harbor porpoise. To avoid duplication, the measures put in place through the Multispecies FMP were not incorporated into the HPTRP, but the effects were included in the calculation of expected harbor porpoise bycatch reduction. This strategy and the predicted bycatch reduction are discussed and analyzed in the Environmental Assessment (EA) prepared for the HPTRP and in the preamble of the December 2, 1998, HPTRP final rule and are incorporated by reference.
NMFS established two take reduction teams to address bycatch of the GOM/BOF population of harbor porpoise in commercial fisheries. The Gulf of Maine Harbor Porpoise Take Reduction Team (HPTRT) was established on February 12, 1996, to address incidental takes of the GOM/BOF stock of harbor porpoise in the Northeast sink gillnet fishery. The Mid-Atlantic Take Reduction Team (MATRT) was established on February 25, 1997, to address interactions between the GOM/BOF population of harbor porpoise and the Mid-Atlantic coastal gillnet fishery. Each team submitted take reduction plans to NMFS, and NMFS combined the measures recommended by each team for harbor porpoise bycatch reduction into one Harbor Porpoise Take Reduction Plan (HPTRP). Therefore, the HPTRP addresses bycatch in both the Northeast sink gillnet fishery and the Mid-Atlantic coastal gillnet fishery. The proposed rule was published on September 11, 1998 (63 FR 48670), and finalized on December 2, 1998 (63 FR 66464). NMFS published a notice on December 23, 1998 (63 FR 71041) that corrected errors to New England closure boundaries.
The primary measures to reduce bycatch implemented in the HPTRP included time/area closures and time/area periods where use pingers is required for the Northeast sink gillnet fishery and time/area closures and gear modifications and restrictions for the Mid-Atlantic coastal gillnet fishery. The specific measures implemented in the HPTRP are incorporated by reference. The analysis presented in the EA prepared for the HPTRP estimated that the measures implemented in the HPTRP would reduce the incidental mortality and serious injury of harbor porpoise from approximately 2,040 animals per year to less than the PBR level of 483 animals per year. The measures implemented to address harbor porpoise mortality and serious injury in the Northeast sink gillnet fishery were expected to reduce the incidental mortality and serious injury of harbor porpoise from an average of 1,833 animals per year to 309 animals per year. The measures implemented to address harbor porpoise mortality and serious injury in the Mid-Atlantic coastal gillnet fishery were expected to decrease harbor porpoise mortality and serious injury from an average fo 207 animals per year to less than 50 animals per year.
The HPTRT and MATRT have both met twice since implementation of the HPTRP to review elements of the Plan, discuss how it is working, identify areas for improvement, and discuss approaches to meet further bycatch reduction goals mandated by section 118 of the MMPA. At a meeting in December of 1999, the HPTRP submitted consensus recommendations to NMFS addressing pinger operation and testing, data use and reliability, effort measurement, clarification of the impact of discards on the bycatch estimates, enforcement, analysis of pinger data, gear studies, analysis of and involvement in fishery management plans, authorization of the use of higher-frequency pingers, and investigation of enhanced acoustically reflective gillnet gear as a bycatch reduction tool.
At a meeting in January of 2000, the MATRT submitted consensus recommendations to NMFS regarding observer coverage, non-compliance with the requirement to carry an observer, the role of the MATRT in reviewing proposed rules, adjustment of the Delaware Bay exemption line, the lower bound in the definition of the small mesh fishery, fishing industry investigation of mitigation strategies for harbor porpoise and bottlenose dolphin including pingers and reflective gillnetting, NMFS mitigation strategies, and investigation of interactions between recreational gear and harbor porpoise and bottlenose dolphins.
On October 27, 2000, NMFS issued a proposed rule redefining Delaware Bay in the list of exempted waters to include waters landward of the 72 COLREGS line (65 FR 64415). The MATRT recommended by consensus that NMFS redefine the list of exempted waters because, in its opinion, harbor porpoise stranding and observer data indicated that harbor porpoise were not taken within Delaware Bay. The final rule exempting Delaware Bay was published on January 11, 2001 (66 FR 2336).
NMFS reconvened the MATRT in November 2000. The team recommended that NMFS solicit team input on regulatory changes, streamline coordination between fishery management plan measures and take reduction plan measures, modify and standardize gear definitions, improve the observer program, develop gear research and education measures that may result in additional bycatch reduction, and evaluate incidental take of harbor porpoise and bottlenose dolphin in recreational fisheries.
NMFS reconvened the HPTRT in December 2000. The team recommended that NMFS establish a program in cooperation with the states to certify that pingers are operational, develop a schedule for penalties for non-compliance with the plan, notify permit holders about problems with non-compliance, consider moving the southern boundaries of the Cape Cod South closure to include takes observed in 2000, and develop a proposal for a stand-alone MMPA plan (i.e., one that contains all measures necessary for porpoise protection rather than incorporating FMP measures designed for fish conservation).
The Multispecies FMP measures incorporated into the HPTRP strategy at the time of the December 1998 final rule included time/area, seasonal, and year-round closures for groundfish protection implemented under Framework 25 (63 FR 15326, March 31, 1998), which built on Amendments 5 (59 FR 9884, March 1, 1994) and 7 (61 FR 27710, May 31, 1996) and Framework 9 (60 FR 19364, April 18, 1995) of the Multispecies FMP.
NMFS expanded the time/area closure system in the Multispecies FMP in 1999. Framework 26 (64 FR 2601, January 15, 1999), implemented shortly after implementation of the HPTRP, expanded one closure and added two others. Framework 27 (64 FR 24066, May 5, 1999) expanded the GOM inshore seasonal closure areas for March through June, the Cashes Ledge closure area and time of closures (as defined under the FMP), created an additional closure in Massachusetts Bay, and eliminated the Northeast closure as a groundfish closure, although it was retained as a harbor porpoise closure area. Framework 28 (64 FR 15704, April 1, 1999) made several changes for consistency with the HPTRP, including opening an area previously closed to gillnet fishing under the Multispecies FMP for porpoise protection, as long as pingered nets were used.
Multispecies FMP groundfish time/area closures in effect for Calendar Year 2000 included some from the 1999 fishing year as well as those implemented in Frameworks 31 and 33. Framework 31 (65 FR 377, January 5, 2000) included an additional inshore area closure. Framework 33 (65 FR 21658, April 24, 2000) expanded the time/area closure system for groundfish protection, including a one-year extension of the year-round Western GOM closure, addition of a closure of a portion of Georges Bank east and southeast of Cape Cod during May, and conditional closures of a portion of Massachusetts Bay/Stellwagen Bank in January and Cashes Ledge (as defined by the FMP) in November that would be triggered if cod landings reached certain levels. Both the November 2000 and the January 2001 conditional closures were triggered, but the latter is outside the time period of this analysis.
NMFS also implemented Framework Adjustments 29, 30, 32, 34, and 35 to the Multispecies FMP for Fishing Years 1999 and 2000. However, these frameworks did not affect time/area closures applicable to gillnet gear, and are therefore not discussed here.
The estimates of GOM/BOF harbor porpoise bycatch for 1999 and 2000 are derived from the following components: (a) bycatch attributable to the Northeast sink gillnet fishery, (b) bycatch attributable to the Mid-Atlantic coastal gillnet fishery, (c) bycatch attributable to the BOF Canadian sink gillnet fishery, (d) bycatch attributable to the BOF Canadian herring weir fishery, and (e) records of fishery interactions reported in the stranding data, as appropriate.
NMFS analyzes harbor porpoise bycatch derived from observer coverage in the Northeast sink gillnet fishery and Mid-Atlantic coastal gillnet fishery in three seasonal components: Winter (January-May), Summer (June-August), and Fall (September-December). Other sources of bycatch are then added to these estimates to derive the total annual estimate.
The estimated bycatch attributable to the Northeast sink gillnet fishery (as defined in the MMPA List of Fisheries) during the winter, summer, and fall seasons for 1999 and 2000 is presented in Tables 1, 2, and 3, respectively.
During the winter season of 1999, time-area closures and pinger restrictions affected this fishery under both the HPTRP and the Multispecies FMP. During the winter, the majority of FMP closures occurred in the GOM. In 2000, the same HPTRP restrictions were in place, but the FMP measures changed. Estimated winter bycatch for this fishery was 149 (CV=0.43) in 1999 and 159 (CV=0.64) in 2000 (Table 1). Winter fishing effort, measured in tons landed, decreased from 5,380 metric tons in 1999 to 3,982 metric tons in 2000 (NMFS unpublished data). Thus, the bycatch remained approximately the same in 2000 although fishing catch was reduced relative to 1999.
The HPTRP incorporates some restrictions that have been in effect under the Multispecies FMP since 1994. Therefore, the best baseline estimate of harbor porpoise bycatch in New England prior to the implementation of porpoise protection measures is the average annual bycatch for the earliest years of the NMFS Sea Sampling Program, 1990-1993. Based on data presented in Bravington and Bisack (1996), the average historical (1990-1993) winter bycatch in this fishery was 988 animals. The winter bycatch in 1999 and 2000 was substantially less than historical levels for this season. Winter 1999 and 2000 harbor porpoise serious injury and mortality in the Northeast Sink Gillnet Fishery is presented in Table 1.
During the summer season, relatively few time-area closures and no pinger restrictions affected this fishery in 1999 or 2000. Estimated summer bycatch for this fishery was 29 (CV=0.94) in 1999 and 0 in 2000. Fishing effort in the summer season consisted of 7,509 metric tons landed in 1999 and 5,656 metric tons in 2000 (NMFS unpublished data). Based on data presented in Bravington and Bisack (1996), the average historical (1990-1993) summer bycatch in this fishery was 107 animals. Thus, the summer bycatch for both 1999 and 2000 was below the historical average. This is not unusual because most of the GOM/BOF harbor porpoise population moves north into the Bay of Fundy during the summer. Summer 1999 and 2000 harbor porpoise serious injury and mortality in the Northeast Sink Gillnet Fishery is presented in Table 2.
During the fall, HPTRP restrictions for this fishery are primarily pinger restrictions, with the exception of the Northeast closure. FMP time-area closures were also in place during the fall of 1999 and 2000. Estimated fall bycatch for this fishery was 92 (CV=0.43) in 1999 and 348 (CV=0.45) in 2000. Fall fishing effort was measured at 5,793 metric tons in 1999 and 4,849 metric tons in 2000. Based on data presented in Bravington and Bisack (1996), the average historical (1990-1993) fall bycatch in this fishery was 770 animals. Thus, the fall bycatch for both 1999 and 2000 was below the historical average. Fall 1999 and 2000 harbor porpoise serious injury and mortality in the Northeast Sink Gillnet Fishery is presented in Table 3.
Adding the bycatch from the three seasons results in a total bycatch of 270 (CV=0.28) for the New England sink gillnet fishery in 1999 and 507 (CV=0.37) in 2000. Inter-annual variability in harbor porpoise and groundfish distribution is expected, and this variability will likely be reflected in observed bycatch patterns. Therefore, NMFS typically takes an average of several years to derive the best representation of the bycatch scenario. The average annual estimated bycatch for this fishery during 1999-2000 was 389 (CV=0.26) animals.
The historical (1990-1993) average harbor porpoise serious injury/mortality for this fishery was estimated at 1,875 (CV=0.32) animals (Blaylock,
The estimated bycatch attributable to the Mid-Atlantic coastal gillnet fishery in 1999 and 2000 is presented in Table 4. In 1999 and 2000, bycatch was observed in the Mid-Atlantic only during the winter season. NMFS did not incorporate any FMP restrictions into the HPTRP strategy for the Mid-Atlantic coastal gillnet fishery. HPTRP restrictions for the Mid-Atlantic include time-area closures and gear restrictions, which were developed to target the monkfish and dogfish subfisheries and based on gear characteristics most closely associated with harbor porpoise bycatch in these fisheries.
Most of the Mid-Atlantic measures in the HPTRP are divided into two categories, which correspond to “large mesh” and “small mesh” gear as defined in the HPTRP. Only one time-area closure, the “Mudhole” closure off New Jersey, applies to both mesh categories. The lower bound of “small mesh” is defined in the HPTRP as mesh of sizes greater than 5.0 inches (12.7 cm), so mesh sizes of 5.0 inches (12.7 cm) and smaller are not regulated by the HPTRP in the Mid-Atlantic. Although takes have been observed in gear with mesh sizes 5.0 inches (12.7 cm) and smaller, there is no basis at this time to apply the current gear restrictions to those mesh sizes. Further information obtained from observer coverage and gear research may yield information which can be used to develop additional gear modifications.
The monkfish and dogfish fisheries have changed significantly as a result of FMP measures. The stock rebuilding programs in the FMPs for monkfish and dogfish have substantially reduced fishing effort in these two subfisheries of the Mid-Atlantic coastal gillnet fishery.
As presented in Table 4, the estimated annual harbor porpoise mortality attributable to the Mid-Atlantic coastal gillnet fishery was 53 (CV=0.49) in 1999 and 21 (CV=0.76) in 2000. The goal for the Mid-Atlantic component of the HPTRP was to reduce takes in this fishery from 207 per year to 43 per year. According to the bycatch estimates based on observed takes for 1999 and 2000, this goal was not reached in 1999 but was reached in 2000. However, the HPTRP measures for the Mid-Atlantic were intended to address bycatch in the monkfish and dogfish subfisheries. The takes documented in 1999 and 2000 did not occur in either the monkfish or dogfish subfisheries; rather, they occurred in the shad subfishery. The bycatch estimates for both 1999 and 2000 represent a substantial reduction from the goal of 207. The average estimated bycatch for this fishery during 1999-2000 was 37 (CV=0.41) animals per year.
In 1999, 228 harbor porpoise stranded along the U.S. East Coast. With regard to the strandings for which a fishery interaction determination could be made, 38 exhibited signs of fishery interaction involving monofilament line or mesh. Of those 38, one was in New England and the remainder in the Mid-Atlantic. NMFS estimates that 19 of the 37 in the Mid-Atlantic resulted from events occurring in times/areas where they would not have been detected by the Sea Sampling Program. An extrapolated estimate cannot be derived from the stranding numbers because the extrapolation factor is unknown. However, these 19 strandings are added to the extrapolated estimates of mortality and serious injury for 1999.
The Mid-Atlantic coastal gillnet fishery is the only fishery with documented takes of harbor porpoise in the Mid-Atlantic. However, there are other commercial and recreational fisheries in the Mid-Atlantic which may use gear that would make net marks similar to the gear used in the Mid-Atlantic coastal gillnet fishery. Therefore, NMFS is currently attributing the 19 takes to an unknown fishery. Should any Mid-Atlantic fisheries not currently regulated by the HPTRP be identified as sources of harbor porpoise serious injury/mortality, section 118 of the MMPA gives NMFS the authority to add representatives of these fisheries to the MATRT. However, restrictions can only be implemented through the HPTRP for commercial fisheries at this time, i.e., not recreational fisheries.
The bycatch in both the Northeast sink gillnet fishery and the Mid-Atlantic coastal gillnet fishery in 1999 and 2000 reflects a substantial reduction from historical levels of harbor porpoise mortality and serious injury. NMFS assumes that this reduction has been achieved through measures implemented through the HPTRP and FMP actions.
The combination of HPTRP and FMP measures was sufficient to reduce the bycatch to below PBR in both 1999 and 2000. However, because FMP closures are subject to change in a different management process than the HPTRP, the degree of harbor porpoise protection realized from the combined strategy will always be vulnerable to changes in the FMP closure system when the goal of maintaining the bycatch below PBR is dependent upon the FMP closures. As long as this strategy is maintained, active monitoring and response to changes in FMP restrictions will be required. Furthermore, if the goals of the FMPs are met, the closures could be lifted, resulting in an unknown effect on harbor porpoise bycatch. NMFS will monitor actions taken under the FMPs to ensure that any changes to fishery management measures that may or do result in unanticipated increases in harbor porpoise bycatch rates are mitigated through one of the available regulatory mechanisms. NMFS may also revise the HPTRP to incorporate all measures necessary to ensure reduced harbor porpoise bycatch rather than relying on FMP time/area closures.
In the Multispecies FMP, NMFS has maintained porpoise protection measures up through Framework 28. Because porpoise bycatch reduction is also an objective of the Multispecies FMP, the FMP authority represents a supplementary regulatory mechanism for addressing harbor porpoise bycatch.
In addition, the Atlantic States Marine Fisheries Commission (ASMFC) has adopted protected species items in their charter for development of inter-state FMPs. This provides another potential regulatory mechanism for implementing porpoise bycatch reduction measures.
Canadian regulatory mechanisms were described in the October 22, 1998,
The Canada Department of Fisheries and Oceans (DFO) finalized the Harbor Porpoise Conservation Plan in 1994. This plan was intended to reduce the mortality of harbor porpoise in the BOF sink gillnet fishery to sustainable levels. In 1995, DFO developed an expanded program called Harbor Porpoise Conservation Strategy for the Bay of Fundy (HPCS). This plan incorporated gillnet fishing effort reduction, required pinger use, expanded observer coverage, and included a fisher education program. In 1999 and 2000, no porpoise-specific changes have been made to the HPCS.
The goal of the HPCS was to reduce the bycatch to a level below two percent of the GOM/BOF porpoise population abundance estimate, a target of 110 animals per year in the Bay of Fundy. This goal was reached in 1999 and is expected to have been met in 2000. The bycatch for 1999 is estimated at 20 animals, and the 2000 estimate is not expected to exceed 20. By comparison, bycatch was estimated to be 424 animals in 1993 and 101 animals in 1994 (Trippel,
Since 1998, DFO has been assisting the Bay of Fundy sink gillnet fishery in testing alternative gillnet gear developed in the U.S. by individuals involved in porpoise bycatch reduction efforts throughout the GOM/BOF. This gear shows promise as a bycatch reduction tool for harbor porpoise (and possibly marine birds) and may be tested in U.S. waters in the near future.
Although no takes of harbor porpoise in recreational gear have been documented, it is possible that such takes are occurring. Any takes that occur by recreational fisheries would be in violation of the take provisions of the MMPA unless authorized under section 101(a)(5) of the MMPA.
Other human activities could result in lethal takes of harbor porpoise, and such takes would also be addressed in section 101 (a)(5) of the MMPA. No lethal takes of harbor porpoise have been documented incidental to human activities other than commercial fisheries, except for scientific research activities, as discussed in the following section.
In the U.S., scientists wishing to undertake research activities specifically targeting harbor porpoise are required to obtain permits under the scientific research provision of the MMPA. NMFS is not aware of any reports of mortality or serious injury from scientific research activities other than a mortality of a harbor porpoise recorded during a gillnet survey conducted by the Maryland Department of Marine Resources in upper Chesapeake Bay in the mid-1990s. However, there have been research projects specifically directed at studying harbor porpoise, and non-lethal takes were authorized under the MMPA scientific research permit provisions for those activities.
Intentional lethal take of marine mammals is prohibited by the MMPA with the exception of cases where human safety is threatened. Since it is unlikely that human safety would be threatened during an encounter with a harbor porpoise, this type of take is unlikely to occur.
Acute impacts to the GOM/BOF harbor porpoise population could occur as a result of unusually high mortality events caused by natural or human-caused factors (e.g., disease, biotoxins, oil spill). Section 404 of Title IV of the MMPA requires the Secretary of Commerce to establish a marine mammal unusual mortality event working group that is responsible for identifying when an unusual mortality event is occurring and to develop a contingency plan to assist the Secretary in responding to the event. NMFS has established the working group, a policy for identifying unusual mortality events, and a generic contingency plan (Wilkinson 1996). This mechanism is available should it become necessary to respond to a suspected mortality event.
NMFS has identified several anthropogenic factors that could contribute to the threat or endangerment of the GOM/BOF harbor porpoise population. These include pathology due to contaminants, intentional takes for subsistence, and competition with commercial fisheries.
The presence of contaminants in the tissues of harbor porpoise could affect the survival and/or reproductive capacity of individuals. There is no new evidence since the 1998 status review to indicate that contaminants in harbor porpoise tissues pose a serious threat to this population at the present time.
Harbor porpoises were harvested by indigenous hunters in Maine and Canada before the 1960s (NEFSC 1992). The extent of these past harvests is unknown, though it is believed to have been small. Up until the early 1980s, small subsistence kills of harbor porpoise in the GOM/BOF by indigenous hunters of the Passamaquoddy Nation in both U.S. and Canadian waters were reported. The hunt was believed to have nearly stopped (Polacheck 1989), however, public media reports in September 1997 depicted a Passamaquoddy hunter dressing out a harbor porpoise that had been taken in Canadian waters. Any subsistence harvest that may be occurring at the present time is assumed to be at such a low level that it would not contribute to the threat or endangerment of the GOM/BOF harbor porpoise population.
Harbor porpoise could be competing with commercial fisheries where there is overlap between commercial target species and porpoise prey species. Porpoise food habits are not conclusively known in the Western North Atlantic; however, some information on prey preferences is available from analysis of the stomach contents of porpoise incidentally taken in commercial fisheries. Stomachs from 95 harbor porpoises caught in groundfish gillnets in the Gulf of Maine between September and December 1989-94 were analyzed by Gannon,
Competition effects would be enhanced if the commercial fishery is
Section 4 (b)(1) of the ESA requires the Secretary of Commerce to make a listing determination solely on the basis of the best scientific and commercial data available and after taking into account efforts being made to protect the species. Therefore, in reviewing the status of the GOM/BOF population of harbor porpoise, NMFS has assessed the status of the species, identified factors that could result in a threat or endangerment to the species, and evaluated available conservation measures to determine whether such measures adequately mitigate risks to the species.
The 1998 status review and proposal to list the GOM/BOF stock of harbor porpoise as threatened under the ESA identified mortality and serious injury incidental to commercial fishing as the primary threat to this stock of harbor porpoise. However, in 1999 the proposal to list the GOM/BOF stock of harbor porpoise as threatened under the ESA was withdrawn because bycatch reduction measures implemented in the United States and Canada were sufficient to reduce harbor porpoise mortality and serious injury incidental to commercial fishing. Despite the withdrawal of the proposal to list the GOM/BOF stock of harbor porpoise as threatened under the ESA, NMFS maintained harbor porpoise on the ESA candidate species list to notify the public of NMFS’ concern regarding the population and to ensure continued monitoring of the species’ status.
Since 1999, NMFS has obtained no information to suggest that: (1) other factors could cause the stock to be threatened under the ESA, or (2) that the bycatch reduction measures in place are inadequate regulatory mechanisms to reduce harbor porpoise mortality and serious injury. An analysis of the five listing factors indicates at this time that none of these factors, alone or in combination with one another, is likely to threaten or endanger the GOM/BOF harbor porpoise population. Therefore, listing the GOM/BOF population of harbor porpoise as threatened or endangered is not warranted at this time. In addition, because of the reduction in harbor porpoise mortality since 1999, it is appropriate to remove the GOM/BOF harbor porpoise population from the candidate species list.
The most significant factors that NMFS considered are the results of implementation of measures promulgated under the MMPA and Magnuson-Stevens Fishery Conservation and Management Act to reduce the level of harbor porpoise mortality incidental to commercial fishing in U.S. waters and the Harbor Porpoise Conservation Strategy implemented by the Canada Department of Fisheries and Oceans. Although it is likely that porpoise mortality will continue to occur incidental to fishery operation, existing regulatory mechanisms for addressing the threat of bycatch in commercial fisheries are adequate to remove the potential that lethal take in these fisheries does or will pose a threat or endangerment to this population. Regulatory agencies have the authority to adapt management measures if unanticipated changes in porpoise bycatch patterns occur.
NMFS’ conclusion that these conservation efforts promote the sustainability of the GOM/BOF population of harbor porpoise is based on the following factors: (1) These plans, which include specific porpoise bycatch reduction measures, have been in place for the past 2 years, and the mortality of harbor porpoise has dropped to below the PBR level; (2) a population viability analysis did not result in any extinction projections (Wade 2001); (3) the abundance and distribution of harbor porpoise are greater than previously believed, resulting in an increase in PBR; and (4) bycatch reduction objectives and time frames for achieving these objectives relative to MMPA take reduction goals have been established and include adaptive management principles.
Although the HPTRP and other bycatch reduction efforts have reduced the incidental take of harbor porpoise in the gillnet fisheries to below PBR in both 1999 and 2000, it is clear from the observation efforts during the first 2 years of HPTRP implementation that the plan’s effectiveness must continue to be monitored. NMFS is aware of non-compliance with HPTRP regulations that may have reduced the plan’s effectiveness, requiring additional outreach and enforcement to maximize the effectiveness of the HPTRP. Furthermore, fishery management measures have changed since the implementation of the HPTRP and are likely to continue to change on an annual basis. It is possible that closures implemented for fish conservation will be removed when fish stocks reach their rebuilding targets, which could result in an increased risk to harbor porpoise and may require adjustment of the HPTRP. NMFS will continue to monitor the bycatch levels and adjust the HPTRP as necessary to reach a zero mortality and serious injury rate as established in Section 118 of the MMPA. NMFS will monitor any new regulations or changes to existing regulations that may affect harbor porpoise bycatch and evaluate whether management measures need to be changed. NMFS intends to reconvene the TRTs as appropriate to monitor the implementation of the HPTRP relative to MMPA goals.
To ensure that this review of the status of the GOM/BOF harbor porpoise population is comprehensive and based on the best available information, NMFS is soliciting information and comments from any interested person concerning the status of the Gulf of Maine/Bay of Fundy stock of harbor porpoise and any of the issues discussed above in our preliminary determination of the status of this population. NMFS is primarily interested in new information that has become available since NMFS last determined that listing of this stock was not warranted (64 FR 465, January 5, 1999). It is requested that data, information, and comments be accompanied by (1) supporting documentation such as maps, logbooks, bibliographic reference, personal notes, or reprints of pertinent publications; and (2) the name of the person submitting the data, his/her address, and any association, institution, or business that the person represents. NMFS will consider all comments prior to making its final determination on the status of the GOM/BOF harbor porpoise stock, whether to list it under the ESA, and whether to remove it from the Candidate Species List.
Bisack, K. D. 1997a. Harbor porpoise bycatch estimates in the New England multispecies sink gillnet fishery: 1994 and 1995.
Blaylock, R.A., J.W. Hain, L.J. Hansen, D.L. Palka, and G.T. Waring. 1995. U.S. Atlantic and Gulf of Mexico marine
Bravington, M. V. and K. D. Bisack. 1996. Estimates of harbor porpoise bycatch in the Gulf of Maine sink gillnet fishery, 1990-1993.
Caswell, H., S. Brault, A. Read and T. Smith. 1998. Harbor porpoise and fisheries: an uncertainty analysis of incidental mortality.
Cox, T. M., A. J. Read, S. Barco, J. Evans, D. P. Gannon, H. N. Koopman, W.A . McLellan, K. Murray, J. Nicolas, D. A. Pabst, C. W. Potter, W. M. Swingle, V. G. Thayer, K. M. Touhey and A. J. Westgate. 1998. Documenting the bycatch of harbor porpoises,
CUD (Conservation and Utilization Division). 1994. Estimating harbor porpoise bycatch in the Gulf of Maine sink gillnet fishery, NOAA, NMFS, NEFSC Ref. Doc. 94-24, Woods Hole, MA.
DFO (Department of Fisheries and Oceans). 1998. Harbour porpoise bycatch in the lower Bay of Fundy gillnet fishery. DFO Maritimes Regional Fisheries Status Report 98/7E. (Available from Department of Fisheries and Oceans, Resource management Branch, P.O. Box 550, Halifax, NS B3J 2S7, Canada..)
Gannon, D. P., J. E. Craddock and A. J. Read. 1998. Autumn food habits of harbor porpoises,
Gaskin, D. E. 1977. Harbour porpoise,
Gaskin, D. E. 1984. The harbor porpoise Phocoena phocoena (L.): Regional populations, status, and information on direct and indirect catches. Rep. Int Whal. Commn 34:569-586.
Gaskin, D. E. 1992. The status of the harbour porpoise.
Gilbert, J. R. and K. M. Wynne. 1985. Harbor seal populations and fisheries interactions with marine mammals in New England, 1984. Fourth Annual Report, Contract NA-80-FA-C-00029, Northeast Fisheries Center, Woods Hole, MA, 15 pp.
Gilbert, J. R. and K. M. Wynne. 1987. Harbor seal populations and fisheries interactions with marine mammals in New England. Final Report Contract NA-EA-C-0070, Northeast Fisheries Center, Woods Hole, Massachusetts. 15 pp.
Haley, N. J. and A. J. Read. 1993. Summary of the workshop on harbor porpoise mortalities and human interaction. NOAA Tech. Mem. NMFS-F/NER 5.
Hooker, S. K., R. W. Baird and M. A. Showell. 1997. Cetacean strandings and bycatches in Nova Scotia, Eastern Canada, 1991-1996. Meeting document SC/49/O5 submitted to the 1997 International Whaling Commission Scientific Committee meeting in Bournemouth, UK.
Johnston, D. W. 1995. Spatial and temporal differences in heavy metal concentrations in the tissues of harbour porpoises (
Kingsley, M. C. S. and R. R. Reeves. 1998. Aerial surveys of cetaceans in the Gulf of St. Lawrence in 1995 and 1996.
Koopman, H. N., A. J. Westgate and A. J. Read. 1999. Hematology values of wild harbor porpoise (
Kraus, S. D. and S. Brault. (in press). A springtime field test of the use of pingers to reduce incidental mortality of harbor porpoises in gillnets.
Kraus, S. D., A. Read, E. Anderson, K. Baldwin, A. Solow, T. Sprawling and J. Williamson. 1997. Acoustic alarms reduce porpoise mortality.
Kraus, S. D., J. H. Prescott and G. S. Stone. 1983. Harbour porpoise,
Lamb, A. 2000. Patterns of harbor porpoise mortality in two US Atlantic sink gillnet fisheries and changes in life history parameters. Masters Thesis from Boston University.
Lucas, Z. N. and S. K. Hooker. 2000. Cetacean strandings on Sable Island, Nova Scotia, 1970-1998.
Molyneaux, P. 2000. Tradition at stake.
Neimanis, A. S., A. J. Read, A. J. Westgate, H. N. Koopm an, J. Y. Wang, L. D. Murison and D. E. Gaskin. 1995. Entrapment of har our porpoises (
NEFSC (NMFS Northeast Fisheries Science Center). 1992. Harbor porpoise in eastern North America: Status and research needs. Results of a scientific workshop held May 5-8, 1992 at the Northeast Fisheries Science Center, Woods Hole, MA. NOAA, NMFS, NEFSC Ref. Doc. 92-06, Woods Hole, MA.
Palka, D. 2000. Abundance of the Gulf of Maine/Bay of Fundy harbor porpoise based on shipboard and aerial surveys during 1999. NOAA/NMFS/NEFSC Ref. Doc. 00-07; 29 pp. Available from: National Marine Fisheries Service, 166 Water Street, Woods Hole, MA 02543-1026.
Palka, D. 1996. Update on abundance of Gulf of Maine/Bay of Fundy harbor porpoises. NOAA/NMFS/NEFSC Ref. Doc. 96-04; 37 pp. Available from: National Marine Fisheries Service, 166 Water Street, Woods Hole, MA 02543-1026.
Palka, D. 1995a. Abundance estimate of the Gulf of Maine harbor porpoise. pp. 27-50 In: A. Bj<rge and G.P. Donovan (eds.) Biology of the Phocoenids.
Palka, D. 1995b. Influences on spatial patterns of Gulf of Maine harbor porpoises. pp. 69-75 In: A.S. Blix, L. Wall<e and. Ulltang (eds.) Whales, seals, fish and man. Elsevier Science B.V. The Netherlands.
Palka, D. (ed). 1994. Results of a scientific workshop to evaluate the status of harbor porpoises (
Palka, D. L., A. J. Read, A. J. Westgate and D. W. Johnston. 1996. Summary of current knowledge of harbour porpoises in U.S. and Canadian Atlantic waters. Rep. Int Whal. Commn. 46:559-565.
Polacheck, T. 1989. Harbor porpoises and the gillnet fishery.
Polacheck, T., F. W. Wenzel, and G. Early. 1995. What do stranding data say about harbor porpoises (
Read, A. J. 1994. Interactions between cetaceans and gillnet and trap fisheries in the northwest Atlantic.
Read, A. J. and A. A. Hohn. 1995. Life in the fast lane: The life history of harbour porpoises from the Gulf of Maine.
Read, A. J. and A. J. Westgate. 1997. Monitoring the movements of harbour porpoises (
Rosel, P. E., S. C. France, J. Y. Wang and T. D. Kocher. 1999a. Genetic structure of harbour porpoise
Rosel, P. E., S. C. France, J. Y. Wang and T. D. Kocher. 1999a. Genetic structure of harbour porpoise Phocoena phocoena populations in the northwest Atlantic based on mitochondrial and nuclear markers. Molecular Ecology 8: S41-S54.
Rosel, P. E., R. Tiedemann and M. Walton. 1999b. Genetic evidence for limited trans-Atlantic movements of the harbor porpoise
Smith, G. J. D., A. J. Read and D. E. Gaskin. 1983. Incidental catch of harbor porpoises,
Smith, T., D. Palka and K. Bisack. 1993. Biological significance of bycatch of harbor porpoise in the Gulf of Maine demersal gillnet fishery. NOAA, NMFS, NEFSC [Northeast Fisheries Science Center] Ref. Doc. 93-23, Woods Hole, MA.
Trippel, E. A., J. Y. Wang, M. B. Strong, L. S. Carter and J. D. Conway. 1996. Incidental mortality of harbour porpoise (
Trippel, E. A., M. B. Strong, J. M. Terhune and J. D. Conway. 1999. Mitigation of harbour porpoise (
Wade, P. R. and R. P. Angliss. 1997. Guidelines for assessing marine mammal stocks: Report of the GAMMS workshop April 3-5, 1996, Seattle, Washington. U.S. Dep. Commer., NOAA Tech. Memo. NMFS-OPR-12, 93 pp.
Wade, P. R. 1998. Population viability analysis of the Gulf of Maine/Bay of Fundy harbor porpoise. Office of Protected Resources Report, National Marine Fisheries Service.
Wade, P. R. 2001. Revised population viability analysis of the Gulf of Maine/Bay of Fundy harbor porpoise using abundance and mortality estimates through 1999. National Marine Mammal Laboratory, Alaska Fisheries Science Center, National Marine Fisheries Service.
Wang, J. Y., D. E. Gaskin and B. N. White. 1996. Mitochondrial DNA analysis of harbour porpoise, Phocoena phocoena, subpopulations in North American waters.
Walden, J. 1996. The New England gillnet effort study. NOAA, NMFS, NEFSC Ref. Doc. No. 96-10, 38 pp. Northeast Fisheries Science Center, Woods Hole, MA.
Westgate, A. J. and K. A. Tolley. 1999. Geographical differences in organochlorine contaminants in harbour porpoises
Westgate, A. J., A. J. Read, T. M. Cox, T. D. Schofield, B. R. Whitaker and K. E. Anderson. 1998. Monitoring a rehabilitated harbor porpoise using satellite telemetry.
Westgate, A. J., D. C. G. Muir, D. E. Gaskin and M. C. S. Kingsley. 1997. Concentrations and accumulation patterns of organochlorine contaminants in the blubber of harbour porpoises, Phocoena phocoena, from the coast of Newfoundland, the Gulf of St. Lawrence and the Bay of Fundy/Gulf of Maine.
Wilkinson, D. 1996. National contingency plan for response to unusual marine mammal mortality events. U.S. Dep. Commer. NOAA Tech. Memo. NMFS-OPR-9, 118 p.
16 U.S.C. 1531
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public hearings; request for comments.
The Gulf of Mexico Fishery Management Council (Council) will convene public hearings to receive comments on its proposed Draft Amendment 10 to the Fishery Management Plan for the Shrimp Fishery of the Gulf of Mexico, U.S. Waters (Draft Amendment 10).
The public hearings will be held in August, 2001. See
Written comments should be sent to and copies of Draft Amendment 10 are available from the Gulf of Mexico Fishery Management Council, 3018 U.S. Highway 301, North, Suite 1000, Tampa, FL 33619; telephone 813-228-2815. Public hearings will be held in Texas and Florida. See
Dr. Richard Leard, Senior Fishery Biologist, Gulf of Mexico Fishery Management Council; telephone: 813-228-2815.
The public hearings will be convened to take public comment on Draft Amendment 10. The amendment contains alternative measures for reducing bycatch in the Gulf of Mexico shrimp fishery off the west coast of Florida, south and east of Cape San Blas, FL (85°30′ W long.). The Council is considering alternative measures including area and/or seasonal shrimp fishery closures as well as requiring bycatch reduction devices (BRDs) in shrimp trawls used in the subject area.
Public hearings for Draft Amendment 10 will be held at the following locations and dates from 7 p.m. - 10 p.m.
1. Tuesday, August 14, 2001, Laguna Madre Learning Center, Port Isabel High School, Highway 100, Port Isabel, TX 78578, telephone: 956-943-0052;
2. Wednesday, August 15, 2001, Palacios Recreation Center, 2401 Perryman, Palacios, TX 77465, telephone: 361-972-2387;
3. Monday, August 20, 2001, Holiday Inn Beachside, 3841 North Roosevelt Boulevard, Key West, FL 33040, telephone: 305-294-2571;
4. Tuesday, August 21, 2001, Edison Comm. College, Room H101, Ft. Myers, FL (use Shoreline Blvd entrance Park in 1st lot on right [Lot 8]. For Map directions see: http://www.edison.edu/aboutecc/lee_campus.htm;
5. Thursday, August 23, 2001, Tampa Airport Hilton, 2225 Lois Avenue, Tampa, FL 33607, telephone: 813-877-6688; and
6. Tuesday, August 28, 2001, Franklin County Courthouse, 33 Market Street,
The Council will also hear public testimony before taking final action on the amendment on September 12, 2001, at its meeting in New Orleans, LA. A notification of the date, time, and location of that meeting will be published in the
These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Anne Alford at the Council (see
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of receipt of an application for an exempted fishing permit (EFP); request for comments.
NMFS announces receipt of an application for an EFP from the Pacific Marine Conservation Council (PMCC), State of California Department of Fish and Game (CDF&G), and Kenyon Hensel. The primary purpose of the EFP is to collect quantitative information to assess the selectivity of open access vertical hook-and-line and rod-and-reel gear used in the open access fishery off California. If awarded, the EFP would allow a small number of vessels to land groundfish species in excess of cumulative trip limits and to sell a portion of the yellowtail rockfish for profit, providing the vessel carries a State sponsored observer. This EFP proposal is intended to promote the objectives of the Pacific Coast Groundfish Fishery Management Plan (FMP) by providing data on gear selectivity and supporting a cooperative partnership to collect data to enhance management of the groundfish fishery.
Comments must be received by September 4, 2001.
ADDRESSES: Copies of the EFP application are available from Becky Renko, Northwest Region, NMFS, 7600 Sand Point Way N.E., Bldg. 1, Seattle, WA 98115-0070.
Becky Renko, 206-526-6140.
This action is authorized by the FMP and implementing regulations at 50 CFR 600.745 and 50 CFR 660.350.
On June 13, 2001, NMFS received a joint EFP application from PMCC, CDF&G, and Kenyon Hensel, a commercial fisher. The primary purpose of the exempted fishing activity is to provide quantitative information that can be used to assess the selectivity of open access vertical hook-and-line and rod-and-reel gear used in the open access fishery off California. In addition, fishing under the EFP is expected to provide valuable information on at-sea catch monitoring aboard small groundfish vessels.
Fishing for yellowtail rockfish, an abundant and commercially important groundfish species, is constrained by efforts to rebuild canary rockfish, an overfished species. This is because the two species are typically caught together. Open access fishers who target yellowtail rockfish believe that the fishery can be prosecuted with a much lower rockfish bycatch rate than is currently assumed.
Under the current open access trip limits for canary rockfish, fishers are allowed to land up to 50 lb (23 kg) per month of canary rockfish and up to 100 lb (45 kg) per month of yellowtail rockfish. Because the applicants believe that the current limits are too restraining to conduct an assessment of gear selectivity, they are requesting that participating vessels be allowed to land up to 1,000 lb (454 kg) yellowtail rockfish per month. Up to 500 lb (227 kg) of the yellowtail rockfish landed per month could be sold for profit by the vessel. Any monthly yellowtail landings greater than 500 lb,(227 kg) would be forfeited to the state of California. In addition, vessels would be required to retain all harvested rockfish species. Landings in excess of the applicable trip limits would be forfeited to the State of California.
If issued, this EFP would allow designated vessels to retain rockfish in excess of cumulative trip limits and would allow them to sell a portion of the yellowtail rockfish for profit. In addition to the 50-lb (23-kg) per month cumulative limit for canary rockfish, a canary sub-limit of 30 lb (14 kg) per trip would apply. The EFP would also provide for a state-run observer program in which observers collect: species composition and length/weight data, and information on fishing effort, gear configurations and fishing schedules. Without an EFP, groundfish regulations at 50 CFR 660.306 (f) restrict vessels from landing groundfish species or species groups in excess of trip limits.
Data collected during this project is expected to have a broader significance to the management of the groundfish fishery by providing: (1) Quantitative information necessary to evaluate the selectivity of vertical hook-and-line and rod-and reel gear used by open access fishers; (2) catch composition data; (3) length and weight data from harvested catch that is otherwise not available, (4) information on the full retention of rockfish catch; and (5) valuable information on at-sea catch monitoring aboard small groundfish vessels.
If the EFP is issued, approximately 1-5 vessels are expected to fish under the EFP using vertical hook-and-line and rod-and-reel gear, from August to October 2001 and again from June to October 2002. The proposed fishing would initially occur in nearshore waters, 19-55 fathoms, off Crescent City, CA, but may be expanded into other areas depending on the number of participating vessels and the final sampling plan. With the exception of rockfish, landings of all other groundfish will be within the applicable trip limit limits for those species.
In accordance with regulations, NMFS has determined that the proposal warrants further consideration and has consulted with the Council. The Council considered the EFP application during its June 11-5, 2001, meeting in Burlingame, CA and supported approval of the application. A copy of the application is available for review from NMFS (see
16 U.S.C. 1801
National Agricultural Statistics Service, USDA.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995 (Pub. L. No. 104-13) and Office of Management and Budget regulations at 5 CFR part 1320 (60 FR 44978, August 29, 1995), this notice announces the National Agricultural Statistics Service (NASS) intention to request extension and revision of a currently approved information collection, the Respondent Information Evaluation.
Comments on this notice must be received by October 9, 2001 to be assured of consideration.
Contact Rich Allen, Associate Administrator, National Agricultural Statistics Service, U.S. Department of Agriculture, Room 4117 South Building, 1400 Independence Avenue SW., Washington, DC 20250-2001, (202) 720-4333.
These data will be collected under the authority of 7 U.S.C. 2204(a). Individually identifiable data collected under this authority are governed by Section 1770 of the Food Security Act of 1985, 7 U.S.C. 2276, which requires USDA to afford strict confidentiality to non-aggregated data provided by respondents.
Copies of this information collection and related instructions can be obtained without charge from Ginny McBride, the Agency OMB Clearance Officer, at (202) 720-5778.
The Department of Commerce has submitted to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
Copies of the above information collection proposal can be obtained by calling or writing Madeleine Clayton, Departmental Paperwork Clearance Officer, (202) 482-3129, Department of Commerce, Room 6086, 14th and Constitution Avenue, NW, Washington, DC 20230 (or via the Internet at MClayton@doc.gov).
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to David Rostker, OMB Desk Officer, Room 10202, New Executive Office Building, Washington, DC 20503.
Proposed collection; comment request.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)).
Written comments must be submitted on or before October 1, 2001.
Direct all written comments to Madeleine Clayton, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6086, 14th and Constitution Avenue, NW, Washington, DC 20230 (or via the Internet at mclayton@doc.gov).
Requests for additional information or copies of the information collection instrument(s) should be directed to Kimberly Moore, Census Bureau, Room 2744, Building 3, Washington, DC 20233, (301) 457-2797 (or via the Internet at Kimberly.P.Moore@census.gov).
The Census Bureau is the preeminent collector and provider of timely, relevant, and quality data about the people and economy of the United States. Economic data are the Census Bureau's primary program commitment during nondecennial census years. The Economic Census, conducted under authority of Title 13 U.S.C., is the primary source of facts about the structure and functioning of the Nation's economy and features unique industry and geographic detail. Economic Census statistics serve as part of the framework for the national accounts and provide essential information for government, business and the general public. The 2002 Economic Census will cover virtually every sector of the U.S. economy.
The 2002 Vehicle Inventory and Use Survey, a component of the Economic Census, will produce basic statistics (number of trucks, annual miles, and average miles per truck) on the physical and operational characteristics of the nation's private and commercial truck population. It also will yield a variety of subject statistics including trucks by major use, fuel type, miles per gallon, and products carried. The Census Bureau will publish truck results at the state and national level.
Primary strategies for reducing burden in the Vehicle Inventory and Use Survey data collection include employing a stratified random sample to use the least number of sampling units required to produce reliable statistics, providing check boxes with ranges in lieu of requiring specific responses, and utilizing a short form for light trucks with homogeneous characteristics.
The Vehicle Inventory and Use Survey will survey a sample of private and commercial trucks registered in the 50 States and the District of Columbia. Government-owned trucks will not be sampled. Trucks will be divided into 5 different groups: “pick-up,” “van,” “single-unit light,” “single-unit heavy,” and “truck tractors.” All trucks will be selected at random with probabilities of selection varying by group and state. For each selected truck, a questionnaire will be mailed to the owner identified in the truck registration record. The owner will be asked to respond only for the truck identified by the registration information imprinted on the questionnaire, regardless of whether or not it is still in their possession.
Mail selection procedures will distinguish the following groups of trucks:
A sample of “pickups” and “vans” (including panel trucks, minivans, and sport utility vehicles) will be selected. We estimate that the census mail canvass for 2002 will include approximately 32,000 light trucks out of an overall estimated universe of over 70 million privately and commercially registered light trucks.
Selection procedures will assign all single-unit trucks (excluding those in the pickup and van strata) with a gross vehicle weight (GVW) of 26,000 pounds or less to the “single-unit light” group, the remaining single unit trucks to the “single-unit heavy” group, and truck tractors to the “truck tractor” group. We estimate that the census mail canvass for 2002 will include approximately 103,500 medium and heavy trucks out of an overall estimated universe of over 6 million privately and commercially registered medium and heavy trucks.
TC-9501 Light Trucks.
TC-9502 Medium and Heavy Trucks.
TC-9501 (Light Trucks): 31,851.
TC-9502 (Medium and Heavy Trucks): 103,503.
Total Number of Respondents: 135,354.
TC-9501 (Light Trucks): .4 hours.
TC-9502 (Medium and Heavy Trucks): .7 hours.
TC-9501 (Light Trucks): 12,740.
TC-9502 (Medium and Heavy Trucks): 72,452.
Total Annual Burden Hours: 85,192.
TC-9501 (Light Trucks): $231,868.
TC-9502 (Medium and Heavy Trucks): $1,318,626.
Total Annual Cost: $1,550,494.
Comments are invited on: (a) Whether the proposed collection of information is necessary or the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
Import Administration, International Trade Administration, Department of Commerce.
Notice of amended preliminary antidumping duty determination of sales at less than fair value: Honey from the People's Republic of China.
August 2, 2001.
Angelica Mendoza (Inner Mongolia and Zhejiang) at (202) 482-3019, Fred Baker (Kunshan) at (202) 482-2924, Charles Rast at (202) 482-1324 or Donna Kinsella at (202) 482-0194; Antidumping and Countervailing Duty Enforcement Group III, Office Eight, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230.
The Department of Commerce (the Department) is amending the preliminary determination in the antidumping investigation of honey from the People's Republic of China (PRC). This amended preliminary determination results in a revised antidumping rate for one respondent.
On May 4, 2001, the Department issued its affirmative preliminary determination in this proceeding.
On May 21, 2001, the Department received from the petitioners a timely allegation of ministerial errors in the preliminary determination. The petitioners alleged that the Department:
• Incorrectly calculated the value of iron drums for three respondents;
• Applied an incorrect inflation factor for two respondents;
• Used an incorrect byproduct production figure in calculating the volume of beeswax for one respondent;
• Failed to value water in its calculation of energy costs for one respondent.
A significant ministerial error is defined as an error, the correction of which, singly or in combination with other errors, would result in (1) a change of at least five absolute percentage points in, but not less than 25 percent of, the weighted-average dumping margin calculated in the original (erroneous) preliminary determination; or (2) a difference between a weighted-average dumping margin of zero or
The Department has reviewed its preliminary calculations and agrees that what the petitioners identified as ministerial errors do constitute ministerial errors within the meaning of 19 CFR 351.224(f). Moreover, from our review of the calculations we have determined that the Department also erred by:
• Using incorrect freight forwarding rates in valuing the freight charges for one respondent;
• Applying the by-product offset for of beeswax on a kilogram, rather than metric ton basis for one respondent;
• Failing to convert the value of beeswax into the correct currency for one respondent;
• Failing to calculate a single weighted-average normal value for one respondent who had two suppliers;
• Applying an inflator to labor rates taken from the Department's website.
For a detailed analysis and the Department's determinations, see the July 25, 2001 Memorandum to Richard O. Weible from Angelica Mendoza regarding Ministerial Error Allegations on file in room B-099 of the main Commerce building. As a result of our analysis of petitioners' allegations and the other ministerial errors we have identified, we are amending our preliminary determination to revise the antidumping rates in accordance with 19 CFR 351.224(e). However, we have determined that only for Zheijing were the ministerial errors significant within the meaning of 19 CFR 351.224(g). Therefore, this amended preliminary determination reflects a revised margin only for Zheijing. Suspension of liquidation will be revised accordingly and parties will be notified of this determination, in accordance with section 733(d) and (f) of the Tariff act of 1930, as amended (the Tariff Act).
The following weighted-average dumping margins apply:
In our preliminary determination we found critical circumstances with respect to Zhejiang. In order to find critical circumstances in situations in which there is no previous history of dumping of the product, the Department must find that there is a reasonable basis to believe or suspect that an importer knew or should have known that the exporter was selling the subject merchandise at less than fair value.
This determination is issued and published pursuant to section 733(f) and 777(i)(1) of the Tariff Act.
Import Administration, International Trade Administration, Department of Commerce.
Notice of preliminary determination of sales at less than fair value.
We preliminarily determine that stainless steel bar from the United Kingdom is being, or is likely to be, sold in the United States at less than fair value, as provided in section 733(b) of the Tariff Act of 1930, as amended.
Interested parties are invited to comment on this preliminary determination. Since we are postponing the final determination, we will make our final determination not later than 135 days after the date of publication of this preliminary determination in the
August 2, 2001.
Kate Johnson or Rebecca Trainor, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-4929 or (202) 482-4007, respectively.
Unless otherwise indicated, all citations to the Tariff Act of 1930, as amended (“the Act”), are references to the provisions effective January 1, 1995, the effective date of the amendments made to the Act by the Uruguay Round Agreements Act (“URAA”). In addition, unless otherwise indicated, all citations to the Department of Commerce (“Department's”) regulations are to the regulations at 19 CFR Part 351 (April 2000).
Since the initiation of this investigation (
On January 26, 2001, we solicited comments from interested parties regarding the criteria to be used for model-matching purposes and we received comments on our proposed matching criteria on February 8, 2001.
On February 12, 2001, the United States International Trade Commission (“ITC”) preliminarily determined that there is a reasonable indication that imports of stainless steel bar (“SSB”) from the United Kingdom are materially injuring the United States industry (
Also on February 12, 2001, we selected the three largest producers/exporters of SSB from the United Kingdom as the mandatory respondents in this proceeding. For further discussion,
On February 13, 2001, Corus requested that certain special-quality oil field equipment steel grades be excluded from the scope of this investigation.
In February and March 2001, the petitioners
During the period March through June 2001, the Department received responses to Sections A, B, C and D of its original and supplemental questionnaires from Corus and FRSS.
On April 27, 2001, pursuant to 19 CFR 351.205(e), the petitioners made a timely request to postpone the preliminary determination. We granted this request on May 7, 2001, and postponed the preliminary determination until no later than July 26, 2001. (
On July 10 and 11, 2001, the petitioners provided comments on the questionnaire responses of FRSS and Corus, respectively, for the Department's consideration in the preliminary determination. Corus and FRSS responded to these comments on July 16 and 17, 2001, respectively.
Pursuant to section 735(a)(2) of the Act, on June 8, 2001, and July 16, 2001, Corus and FRSS, respectively, requested that, in the event of an affirmative preliminary determination in this investigation, the Department postpone its final determination until not later than 135 days after the date of the publication of the preliminary determination in the
For purposes of this investigation, the term “stainless steel bar” includes articles of stainless steel in straight lengths that have been either hot-rolled, forged, turned, cold-drawn, cold-rolled or otherwise cold-finished, or ground, having a uniform solid cross section along their whole length in the shape of circles, segments of circles, ovals, rectangles (including squares), triangles, hexagons, octagons, or other convex polygons. Stainless steel bar includes cold-finished stainless steel bars that are turned or ground in straight lengths, whether produced from hot-rolled bar or from straightened and cut rod or wire, and reinforcing bars that have indentations, ribs, grooves, or other deformations produced during the rolling process.
Except as specified above, the term does not include stainless steel semi-finished products, cut length flat-rolled products (
The stainless steel bar subject to this investigation is currently classifiable under subheadings 7222.11.00.05, 7222.11.00.50, 7222.19.00.05, 7222.19.00.50, 7222.20.00.05, 7222.20.00.45, 7222.20.00.75, and 7222.30.00.00 of the
In accordance with our regulations, we set aside a period of time for parties to raise issues regarding product coverage and encouraged all parties to submit comments within 20 calendar days of publication of the
• Stainless steel tool steel
• Welding wire
• Special-quality oil field equipment steel (SQOFES)
• Special profile wire
We have addressed these requests in a Memorandum to Susan Kuhbach and Louis Apple from The Stainless Steel Bar Team, dated July 26, 2001, entitled “Scope Exclusion Requests,” and a Memorandum to Louis Apple from The Stainless Steel Bar Team, dated July 26, 2001, entitled “Whether Special Profile Wire Product is Included in the Scope of the Investigation.” Our conclusions are summarized below.
Regarding stainless steel tool steel, welding wire, and SQOFES, after considering the respondents' comments and the petitioners' objections to the exclusion requests, we preliminarily determine that the scope is not overly broad. Therefore, stainless steel tool steel, welding wire, and SQOFES are within the scope of these SSB investigations. In addition, we preliminarily determine that SQOFES does not constitute a class or kind of merchandise separate from SSB.
Regarding special profile wire, we have preliminarily determined that this product does not fall within the scope as it is written because its cross section is in the shape of a concave polygon. Therefore, we have not included special profile wire in these investigations.
Finally, we note that in the concurrent countervailing duty investigation of stainless steel bar from Italy, the Department preliminarily determined that hot-rolled stainless steel bar is within the scope of these investigations. (
The POI is October 1, 1999, through September 30, 2000.
On February 20, 2001, we sent an antidumping questionnaire to Crownridge, however, Crownridge did not respond. Prior to this date, on February 8, 2001, the U.S. Embassy in London informed us that Crownridge was no longer in business, and had been liquidated on February 6, 2001. That Crownridge was no longer in business was subsequently confirmed by counsel to Crownridge, as well as by representatives of the U.S. Embassy in London and our own research. Nevertheless, on June 15, 2001, we made a final attempt to contact the company, but were unsuccessful.
FRSS responded to the Department's questionnaires, but failed to provide sufficient sales and cost information on which to base a preliminary antidumping duty margin, despite numerous opportunities to do so. FRSS's initial sections A-C questionnaire responses of March 23,
For the forgoing reasons, we determine that it is appropriate to apply antidumping margins based on the facts otherwise available to Crownridge and FRSS in accordance with section 776(a)(2)(A) and (B) of the Act, respectively. For further details regarding this determination,
Section 776(a)(2) of the Act provides that, if an interested party (1) withholds information that has been requested by the Department, (2) fails to provide such information in a timely manner or in the form or manner requested, (3) significantly impedes a determination under the antidumping statute, or (4) provides such information but the information cannot be verified, the Department shall, subject to subsections 782(c)(1) and (e) of the Act, use facts otherwise available in reaching the applicable determination.
Section 776(b) of the Act provides that adverse inferences may be used when a party has failed to cooperate by not acting to the best of its ability to comply with requests for information. See also Statement of Administrative Action accompanying the URAA, H.R. Rep. No. 103-316, vol. 1, at 870 (1994) (SAA). While Crownridge failed to respond to the Department's questionnaire, we are satisfied that because of the special circumstances surrounding Crownridge, it was unable to provide a response. Therefore, the Department has determined that no adverse inference is warranted. Consequently, as non-adverse facts available, we have assigned Crownridge the all-others rate in this preliminary determination.
As explained above, FRSS was provided several opportunities to respond fully to the Department's questionnaires. In spite of our efforts, that included meeting with counsel for FRSS specifically to delineate deficiencies in its questionnaire responses, FRSS's responses continue to contain major deficiencies and omissions of data which render them unusable for purposes of the preliminary determination. In particular, FRSS failed to identify an affiliated producer of SSB which produced and sold SSB during the POI until late in the investigation, and then failed to provide basic sales and cost data for its affiliate. For further discussion, see the Facts Available Memorandum. Therefore, we preliminarily find that FRSS failed to act to the best of its ability to provide the information requested. Accordingly, we believe it is appropriate to use an adverse inference in selecting the facts otherwise available on which to base the antidumping rate for FRSS.
In accordance with our standard practice, we determine the margin used as adverse facts available by selecting the higher of (1) the highest margin stated in the notice of initiation, or (2) the highest margin calculated for any respondent. As adverse facts available (“AFA”), we have assigned to FRSS the highest margin in the petition.
Section 776(c) of the Act provides that, when the Department relies on secondary information (such as the petition) in using the facts otherwise available, it must, to the extent practicable, corroborate that information from independent sources that are reasonably at its disposal. In this case, when analyzing the petition for purposes of the initiation, we reviewed all of the data upon which the petitioners relied in calculating the estimated dumping margins, and determined that the margins in the petition were appropriately calculated and supported by adequate evidence in accordance with the statutory requirements for initiation. In order to corroborate the petition margins for purposes of using them as AFA, we re-examined the price and cost information provided in the petition in light of information developed during this investigation. (
In accordance with section 776(c) of the Act, we were able to corroborate the information in the petition using information from independent sources that were reasonably at our disposal. As a result, we have preliminarily assigned FRSS the highest rate contained in the petition, 125.77 percent. Also, for the reasons stated above, we have preliminarily assigned to Crownridge, the “all others” rate as facts available in accordance with section 776(a) of the Act.
To determine whether Corus's sales of SSB from the United Kingdom to the United States were made at less than fair value (“LTFV”), we compared the constructed export price (“CEP”) to the Normal Value (“NV”), as described in the “Constructed Export Price” and “Normal Value” sections of this notice, below. In accordance with section 777A(d)(1)(A)(i) of the Act, we compared POI weighted-average CEPs to NVs.
In accordance with section 771(16) of the Act, we considered all products produced and sold by the respondent (
With respect to grade, we matched products sold in the U.S. and home markets on the basis of the three most similar matches proposed by the respondent, where possible.
On July 10 and 13, 2001, the petitioners submitted general comments on product-matching issues for the Department's consideration in the preliminary determination. These comments were not received in time to be fully analyzed for the preliminary determination, but will be considered for the final determination.
With respect to home market sales of non-prime merchandise made by Corus during the POI, in accordance with our past practice, we excluded these sales from our preliminary analysis based on the limited quantity of such sales in the home market and the fact that no such sales were made to the United States during the POI. (
Corus reported all of its U.S. sales as CEP sales made to unaffiliated customers in the United States through its U.S. affiliates. We calculated CEP, in accordance with subsection 772(b) of the Act, for sales made to the first unaffiliated purchaser that took place after importation into the United States by a seller affiliated with the producer or exporter.
We based CEP on the packed “delivered,” “customer pick-up at U.S. port,” or “customer pick-up at warehouse” prices to unaffiliated purchasers in the United States. We made adjustments to the starting price (
In order to determine whether there is a sufficient volume of sales in the home market to serve as a viable basis for calculating NV (
The Department's standard practice with respect to the use of home market sales to affiliated parties for NV is to determine whether such sales are at arm's-length prices. Therefore, in accordance with that practice, we performed an arm's-length test on Corus's sales to affiliates as follows.
Sales to affiliated customers in the home market not made at arm's-length prices were excluded from our analysis because we considered them to be outside the ordinary course of trade.
Where, for the tested models of subject merchandise, prices to the affiliated party were on average 99.5 percent or more of the price to the unaffiliated parties, we determined that sales made to the affiliated party were at arm's length. See 19 CFR 351.403(c). In instances where no price ratio could be constructed for an affiliated customer because identical merchandise was not sold to unaffiliated customers, we were unable to determine that these sales were made at arm's-length prices and, therefore, excluded them from our LTFV analysis.
Based on our analysis of an allegation contained in the petition, we found that there were reasonable grounds to believe or suspect that sales of SSB in the home market were made at prices below their cost of production (“COP”). Accordingly, pursuant to section 773(b) of the Act, we initiated a country-wide sales-below-cost investigation to determine whether sales were made at prices below their respective COP (
In accordance with section 773(b)(3) of the Act, we calculated COP based on the sum of the cost of materials and fabrication for the foreign like product, plus an amount for general and administrative expenses (“G&A”), interest expenses, and home market packing costs (
On a product-specific basis, we compared the weighted-average COP to the home market sales of the foreign like product, as required under section 773(b) of the Act, in order to determine whether the sale prices were below the COP. The prices were exclusive of any applicable movement charges, rebates, discounts, and direct and indirect
Pursuant to section 773(b)(1), where less than 20 percent of the respondent's sales of a given product are at prices less than the COP, we do not disregard any below-cost sales of that product, because we determine that in such instances the below-cost sales were not made in “substantial quantities.” Where 20 percent or more of a respondent's sales of a given product are at prices less than the COP, we disregard those sales of that product, because we determine that in such instances the below-cost sales represent “substantial quantities” within an extended period of time, in accordance with section 773(b)(1)(A) of the Act. In such cases, we also determine whether such sales were made at prices which would not permit recovery of all costs within a reasonable period of time, in accordance with section 773(b)(1)(B) of the Act.
We found that, for certain specific products, more than 20 percent of Corus's home market sales were at prices less than the COP and, in addition, such sales were made within a reasonable period of time and did not provide for the recovery of costs. We therefore excluded these sales and used the remaining above-cost sales, if any, as the basis for determining NV, in accordance with section 773(b)(1).
Section 773(a)(1)(B)(i) of the Act states that, to the extent practicable, the Department will calculate NV based on sales at the same level of trade (“LOT”) as the EP or CEP. Sales are made at different LOTs if they are made at different marketing stages (or their equivalent). 19 CFR 351.412(c)(2). Substantial differences in selling activities are a necessary, but not sufficient, condition for determining that there is a difference in the stages of marketing.
Pursuant to section 773(a)(1)(B)(i) of the Act, in identifying levels of trade for EP and comparison market sales (
When the Department is unable to match U.S. sales to sales of the foreign like product in the comparison market at the same LOT as the EP or CEP, the Department may compare the U.S. sale to sales at a different LOT in the comparison market. In comparing EP or CEP sales at a different LOT in the comparison market, where available data make it practicable, we make a LOT adjustment under section 773(a)(7)(A) of the Act. Finally, for CEP sales only, if a NV LOT is more remote from the factory than the CEP LOT and we are unable to make a LOT adjustment, the Department shall grant a CEP offset, as provided in section 773(a)(7)(B) of the Act.
In this case, Corus had only CEP sales. It reported that comparison-market and CEP sales were made at different LOTs, and that comparison-market sales were made at a more advanced LOT than were sales to its U.S. affiliates, Corus America Inc. (“CAI”) and Avesta Sheffield Bar Company (“ASB”). Corus requested that the Department make a CEP offset in lieu of a LOT adjustment, as it was unable to quantify the price differences related to sales made at the different LOTs.
Corus reported home market sales through one channel of distribution: sales of subject merchandise from the mill directly to affiliated and unaffiliated customers. Corus offers the same support and assistance to all its home market customers, including assistance in order specification, delivery, and after-sale technical support. Accordingly, all of Corus's home market sales are made in the same channel of distribution and constitute one LOT.
In the U.S. market, Corus reported two channels of distribution (
We compared the CEP LOT to the home market LOT and concluded that the selling functions performed for the home market customers are sufficiently similar to those performed for the U.S. customers to warrant considering them the same LOT. For both LOTs there is a high degree of selling activity related to quality assurance and warranty services, while there is a low (or non-existent) level of selling activity associated with maintaining a warehouse and inventory. Both LOTs also have similar levels of selling activity with regard to most freight and delivery services.
More specifically, the table submitted as Exhibit B-16 of the June 22, 2001, response (
However, for the remaining selling functions for which Corus claimed a different degree of sales activity for its U.S. sales and its home market sales, the levels of activity reported by Corus in the selling functions table are inconsistent with the sales process descriptions in the questionnaire response. For example, the March 27, 2001, response at pages A-16 and A-18
Inasmuch as we consider Corus's CEP sales to be at the same LOT as that of the home market sales, Corus does not qualify for a LOT adjustment or CEP offset pursuant to sections 773(a)(7)(A) or (B) of the Act, respectively.
We calculated NV based on delivered prices to unaffiliated customers or prices to affiliated customers that we determined to be at arm's-length (
We made currency conversions into U.S. dollars in accordance with section 773A(a) of the Act based on the exchange rates in effect on the dates of the U.S. sales as certified by the Federal Reserve Bank.
As provided in section 782(i) of the Act, we will verify all information relied upon in making our final determination.
In accordance with section 733(d)(2) of the Act, we are directing the Customs Service to suspend liquidation of all imports of subject merchandise that are entered, or withdrawn from warehouse, for consumption on or after the date of publication of this notice in the
In accordance with section 733(f) of the Act, we have notified the ITC of our determination. If our final determination is affirmative, the ITC will determine before the later of 120 days after the date of this preliminary determination or 45 days after our final determination whether these imports are materially injuring, or threaten material injury to, the U.S. industry.
We will disclose the calculations used in our analysis to parties in this proceeding in accordance with 19 CFR 351.224(b).
Case briefs for this investigation must be submitted to the Department no later than November 5, 2001. Rebuttal briefs must be filed by November 13, 2001. A list of authorities used, a table of contents, and an executive summary of issues should accompany any briefs submitted to the Department. Executive summaries should be limited to five pages total, including footnotes. Section 774 of the Act provides that the Department will hold a public hearing to afford interested parties an opportunity to comment on arguments raised in case or rebuttal briefs, provided that such a hearing is requested by an interested party. If a request for a hearing is made in this investigation, the hearing will tentatively be held on November 16, 2001, at the U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230. Parties should confirm by telephone the time, date, and place of the hearing 48 hours before the scheduled time.
Interested parties who wish to request a hearing, or to participate if one is requested, must submit a written request to the Assistant Secretary for Import Administration, U.S. Department of Commerce, Room 1870, within 30 days of the publication of this notice. Requests should contain: (1) The party's name, address, and telephone number; (2) the number of participants; and (3) a list of the issues to be discussed. Oral presentations will be limited to issues raised in the briefs.
If this investigation proceeds normally, we will make our final determination by no later than 135 days after the publication of this notice in the
This determination is published pursuant to sections 733(f) and 777(i) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
Notice of preliminary determination of sales at not less than fair value.
We preliminarily determine that stainless steel bar from Taiwan is not being, nor is likely to be, sold in the United States at less than fair value, as provided in section 733(b) of the Tariff Act of 1930, as amended.
Interested parties are invited to comment on this preliminary determination. Since we are postponing the final determination, we will make our final determination not later than 135 days after the date of publication of this preliminary determination in the
August 2, 2001.
Blanche Ziv or Annika O'Hara, Office 1, AD/CVD Enforcement, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-4207 and (202) 482-3798, respectively.
Unless otherwise indicated, all citations to the Tariff Act of 1930, as amended (“the Act”), are references to the provisions effective January 1, 1995, the effective date of the amendments made to the Act by the Uruguay Round Agreements Act (“URAA”). In addition, unless otherwise indicated, all citations to the Department of Commerce (“Department's”) regulations are to 19 CFR Part 351 (April 2000).
Since the initiation of this investigation (
On January 26, 2001, we solicited comments from interested parties regarding the criteria to be used for model-matching purposes. We received comments on our proposed matching criteria on February 8, 2001.
On February 12, 2001, the United States International Trade Commission (“ITC”) preliminarily determined that there is a reasonable indication that imports of stainless steel bar (“SSB”) from Taiwan are materially injuring the United States industry (see ITC Investigation No. 701-TA-913-918 (Publication No. 3395)).
On February 21, 2001, we selected the largest producer/exporter of SSB from Taiwan as the mandatory respondent in this proceeding. For further discussion,
In February and March, 2001, the petitioners in this case (
During the period March through June 2001, the Department received responses to Sections A, B, C and D of the Department's original and supplemental questionnaires from Gloria and its affiliate, Golden Win Steel Corporation (“Golden Win”) (collectively, “Gloria”).
On April 27, 2001, pursuant to 19 CFR 351.205(e), the petitioners made a timely request to postpone the preliminary determination. We granted this request on May 7, 2001, and postponed the preliminary determination until no later than July 26, 2001. (
Pursuant to section 735(a)(2)(B) of the Act, on July 17, 2001, the petitioners requested that, in the event of a negative preliminary determination, the Department postpone its final determination in this investigation. In accordance with 19 CFR 351.210(b)(i), because our preliminary determination is negative and no compelling reasons for denial exist, we are granting the petitioners' request and are postponing the final determination until no later than 135 days after the publication of this notice in the
For purposes of this investigation, the term “stainless steel bar” includes articles of stainless steel in straight lengths that have been either hot-rolled, forged, turned, cold-drawn, cold-rolled or otherwise cold-finished, or ground, having a uniform solid cross section along their whole length in the shape of circles, segments of circles, ovals, rectangles (including squares), triangles, hexagons, octagons, or other convex polygons. Stainless steel bar includes cold-finished stainless steel bars that are turned or ground in straight lengths, whether produced from hot-rolled bar or from straightened and cut rod or wire, and reinforcing bars that have indentations, ribs, grooves, or other deformations produced during the rolling process.
Except as specified above, the term does not include stainless steel semi-finished products, cut length flat-rolled products (
The stainless steel bar subject to this investigation is currently classifiable under subheadings 7222.11.00.05, 7222.11.00.50, 7222.19.00.05, 7222.19.00.50, 7222.20.00.05, 7222.20.00.45, 7222.20.00.75, and 7222.30.00.00 of the
In accordance with our regulations, we set aside a period of time for parties to raise issues regarding product coverage and encouraged all parties to submit comments within 20 calendar days of publication of the
• Stainless steel tool steel
• Welding wire
• Special-quality oil field equipment steel (SQOFES)
• Special profile wire
We have addressed these requests in a
Regarding stainless steel tool steel, welding wire, and SQOFES, after considering the respondents' comments and the petitioners' objections to the exclusion requests, we preliminarily determine that the scope is not overly broad. Therefore, stainless steel tool steel, welding wire, and SQOFES are within the scope of these SSB investigations. In addition, we preliminarily determine that SQOFES does not constitute a separate class or kind of merchandise from SSB.
Regarding special profile wire, we have preliminarily determined that this product does not fall within the scope as it is written because its cross section is in the shape of a concave polygon and the scope does not cover stainless steel with such cross sections in the shape of concave polygons. Therefore, we have not included special profile wire in these investigations.
Finally, we note that in the concurrent countervailing duty investigation of stainless steel bar from Italy, the Department preliminarily determined that hot-rolled stainless steel bar is within the scope of these investigations. Because the petitioners intended for this product to be included in the scope, we have determined that the scope language is not overly-inclusive with regard to this product. As a result, we have not modified the scope of this investigation because the current scope language includes hot-rolled bar, as intended by the petitioners. (
The POI is October 1, 1999, through September 30, 2000.
To determine whether sales of SSB from Taiwan to the United States were made at less than fair value (“LTFV”), we compared the export price (“EP”) to the Normal Value (“NV”), as described in the “Export Price” and “Normal Value” sections of this notice below. In accordance with section 777A(d)(1)(A)(i) of the Act, we compared POI weighted-average EP to NV.
In accordance with section 771(16) of the Act, we considered all products produced and sold by the Gloria in the home market during the POI that fit the description in the “Scope of Investigation” section of this notice to be foreign like products for purposes of determining appropriate product comparisons to U.S. sales. We compared U.S. sales to sales made in the home market, where appropriate. Where there were no sales of identical merchandise in the home market made in the ordinary course of trade to compare to U.S. sales, we compared U.S. sales to sales of the most similar foreign like product made in the ordinary course of trade. In making the product comparisons, we matched foreign like products based on the physical characteristics reported by the respondents in the following order of importance: general type of finish; grade; remelting process; type of final finishing operation; shape; and size.
On July 11 and 13, 2001, the petitioners submitted general comments on product-matching issues for the Department's consideration in the preliminary determination. These comments were not received in time to be fully analyzed for the preliminary determination, but will be considered for the final determination.
We calculated EP, in accordance with section 772(a) of the Act, because the merchandise was sold to the first unaffiliated purchaser in the United States prior to importation by the exporter or producer outside the United States, based on the facts of record. We based EP on the packed delivered price to unaffiliated purchasers in the United States. We made adjustments for returns. We made deductions for movement expenses in accordance with section 772(c)(2)(A) of the Act; these included, where appropriate, foreign inland freight, foreign brokerage and handling, international freight, marine insurance, and U.S. customs duties (including harbor maintenance fees and merchandise processing fees). (
In order to determine whether there is a sufficient volume of sales in the home market to serve as a viable basis for calculating NV (
The Department's standard practice with respect to the use of home market sales to affiliated parties for NV is to determine whether such sales are at arm's-length prices. Therefore, in accordance with that practice, we performed an arm's-length test on Gloria's sales to affiliates as follows.
Sales to affiliated customers in the home market not made at arm's-length prices (if any) were excluded from our analysis because we considered them to be outside the ordinary course of trade.
Based on our analysis of the allegation contained in the petition, we found that there were reasonable grounds to believe or suspect that sales of SSB in the home market were made at prices below their cost of production (COP). Accordingly, pursuant to section 773(b) of the Act, we initiated a country-wide sales-below-cost investigation to determine whether sales were made at prices below their respective COP (
In accordance with section 773(b)(3) of the Act, we calculated COP based on the sum of the cost of materials and fabrication for the foreign like product, plus an amount for general and administrative expenses (G&A), interest expenses, and home market packing costs (
On a product-specific basis, we compared the adjusted weighted-average COP to the home market sales of the foreign like product, as required under section 773(b) of the Act, in order to determine whether the sale prices were below the COP. The prices were exclusive of any applicable movement charges, and direct and indirect selling expenses. In determining whether to disregard home market sales made at prices less than their COP, we examined whether such sales were made (1) within an extended period of time, (2) in substantial quantities, and (3) at prices which did not permit the recovery of all costs within a reasonable period of time.
Pursuant to section 773(b)(1), where less than 20 percent of the respondent's sales of a given product are at prices less than the COP, we do not disregard any below-cost sales of that product, because we determine that in such instances the below-cost sales were not made in “substantial quantities.” Pursuant to 773(b)(2)(C), “substantial quantities” exist when the volume of sales made at below the COP represents 20 percent or more of the volume of sales under consideration for the determination of normal value. Where 20 percent or more of a respondent's sales of a given product are at prices less than the COP, we disregard those sales of that product, because we determine that in such instances the below-cost sales represent “substantial quantities” within an extended period of time, in accordance with section 773(b)(1)(A) of the Act. In such cases, we also determine whether such sales were made at prices which would not permit recovery of all costs within a reasonable period of time, in accordance with section 773(b)(1)(B) of the Act.
We found that, for certain specific products, more than 20 percent of Gloria's home market sales were at prices less than the COP and, in addition, such sales were made within an extended period of time and did not provide for the recovery of costs. We therefore excluded these sales and used the remaining above-cost sales, if any, as the basis for determining NV, in accordance with section 773(b)(1).
For those U.S. sales of SSB for which there were no comparable home market sales in the ordinary course of trade (
Section 773(a)(1)(B)(i) of the Act states that, to the extent practicable, the Department will calculate NV based on sales at the same level of trade (“LOT”) as the EP. Sales are made at different LOTs if they are made at different marketing stages (or their equivalent). 19 CFR 351.412(c)(2). Substantial differences in selling activities are a necessary, but not sufficient, condition for determining that there is a difference in the stages of marketing.
Pursuant to section 773(a)(1)(B)(i) of the Act, in identifying levels of trade for EP and comparison market sales (
When the Department is unable to match U.S. sales to sales of the foreign like product in the comparison market at the same LOT as the EP, the Department may compare the U.S. sale to sales at a different LOT in the comparison market. In comparing EP sales at a different LOT in the comparison market, where available data make it practicable, we make a LOT adjustment under section 773(a)(7)(A) of the Act.
Gloria has reported that it sells to distributors and end users in the home
We calculated NV based on delivered prices to unaffiliated customers. We adjusted the reported quantity to account for returns. We made deductions, where appropriate, from the starting price for inland freight and warehousing. We made adjustments for differences in costs attributable to differences in the physical characteristics of the merchandise in accordance with section 773(a)(6)(C)(ii) of the Act and 19 CFR 351.411 of the Department's regulations. In addition, we made adjustments under section 773(a)(6)(C)(iii) of the Act for differences in circumstances of sale for direct selling expenses, imputed credit expenses and warranties.
We also made adjustments, in accordance with 19 CFR 351.410(e), for indirect selling expenses incurred in the comparison market or the United States, where commissions were granted on sales in one market but not in the other (the “commission offset”). Gloria paid commissions on some U.S. sales of subject merchandise but did not pay commissions on its home market sales. Therefore, in accordance with 19 CFR 351.410(e), we offset the commission incurred in the U.S. market, with indirect selling expenses incurred in the home market (
We made currency conversions into U.S. dollars in accordance with section 773A(a) of the Act based on the exchange rates in effect on the dates of the U.S. sales as certified by the Federal Reserve Bank.
As provided in section 782(i) of the Act, we will verify all information relied upon in making our final determination.
The weighted-average dumping margins are as follows:
Because the estimated weighted-average dumping margin for Gloria, the only examined company, is
In accordance with section 733(f) of the Act, we have notified the ITC of our determination. If our final determination is affirmative, pursuant to section 735(b)(3) of the Act, the ITC will determine within 75 days after our final determination whether these imports are materially injuring, or threaten material injury to, the U.S. industry.
We will disclose the calculations used in our analysis to parties in this proceeding in accordance with 19 CFR 351.224(b).
Case briefs for this investigation must be submitted to the Department no later than November 2, 2001. Rebuttal briefs must be filed by November 9, 2001. A list of authorities used, a table of contents, and an executive summary of issues should accompany any briefs submitted to the Department. Executive summaries should be limited to five pages total, including footnotes. Section 774 of the Act provides that the Department will hold a public hearing to afford interested parties an opportunity to comment on arguments raised in case or rebuttal briefs, provided that such a hearing is requested by an interested party. If a request for a hearing is made in this investigation, the hearing will tentatively be held on November 14, 2001, at the U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230. Parties should confirm by telephone the time, date, and place of the hearing 48 hours before the scheduled time.
Interested parties who wish to request a hearing, or to participate if one is requested, must submit a written request to the Assistant Secretary for Import Administration, U.S. Department of Commerce, Room 1870, within 30 days of the publication of this notice. Requests should contain: (1) The party's name, address, and telephone number; (2) the number of participants; and (3) a list of the issues to be discussed. Oral presentations will be limited to issues raised in the briefs.
If this investigation proceeds normally, we will make our final determination by no later than 135 days after the publication of this notice in the
This determination is published pursuant to sections 733(f) and 777(i) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
Notice of preliminary determination of sales at less than fair value.
We preliminarily determine that stainless steel bar from France is being, or is likely to be, sold in the United States at less than fair value, as provided in section 733(b) of the Tariff Act of 1930, as amended.
Interested parties are invited to comment on this preliminary determination. Since we are postponing the final determination, we will make our final determination not later than 135 days after the date of publication of this preliminary determination in the
August 2, 2001.
Brian Smith or Terre Keaton, Import
Unless otherwise indicated, all citations to the Tariff Act of 1930, as amended (“the Act”), are references to the provisions effective January 1, 1995, the effective date of the amendments made to the Act by the Uruguay Round Agreements Act (“URAA”). In addition, unless otherwise indicated, all citations to the Department of Commerce (“Department's”) regulations are to 19 CFR part 351 (April 2000).
Since the initiation of this investigation (
On January 26, 2001, we solicited comments from interested parties regarding the criteria to be used for model-matching purposes, and we received comments on our proposed matching criteria on February 8, 2001.
On February 12, 2001, the United States International Trade Commission (“ITC”) preliminarily determined that there is a reasonable indication that imports of stainless steel bar (“SSB”) from France are materially injuring the United States industry (
On February 12, 2001, we selected the two largest producers/exporters of SSB from France as the mandatory respondents in this proceeding. For further discussion,
On February 13, 2001, U-SI requested that certain special profile wire product produced by its affiliate Sprint Metal, S.A. (“Sprint”) be excluded from the scope of this investigation.
In February and March 2001, the petitioner
On April 10, 2001, A&D requested that it be permitted to report its costs on a fiscal-year rather than POI basis. For the reasons outlined in a letter dated May 16, 2001, the Department denied this request.
On April 27, 2001, pursuant to 19 CFR 351.205(e), the petitioners made a timely request to postpone the preliminary determination. We granted this request on May 7, 2001, and postponed the preliminary determination until no later than July 26, 2001. (
During the period March through July 16, 2001, the Department received responses to Sections A, B, C, D and E of its original and supplemental questionnaires from A&D and U-SI. On July 13, U-SI submitted revised sales and cost databases on its own initiative. For purposes of the preliminary determination, the Department did not use these revised databases in its analysis because U-SI did not provide the Department with sufficient time to examine them prior to the preliminary determination. However, the Department will examine these databases prior to verification for the final determination.
On July 9, 2001, the petitioners submitted comments on U-SI's questionnaire response for consideration in the preliminary determination. On July 18, 2000, U-SI submitted rebuttal comments in response to the petitioners' July 9, 2001, submission.
Pursuant to section 735(a)(2) of the Act, on June 4, 2001, U-SI requested that, in the event of an affirmative preliminary determination in this investigation, the Department postpone its final determination until not later than 135 days after the date of the publication of the preliminary determination in the
For purposes of this investigation, the term “stainless steel bar” includes articles of stainless steel in straight lengths that have been either hot-rolled, forged, turned, cold-drawn, cold-rolled or otherwise cold-finished, or ground, having a uniform solid cross section along their whole length in the shape of circles, segments of circles, ovals, rectangles (including squares), triangles, hexagons, octagons, or other convex polygons. Stainless steel bar includes cold-finished stainless steel bars that are turned or ground in straight lengths, whether produced from hot-rolled bar or from straightened and cut rod or wire, and reinforcing bars that have
Except as specified above, the term does not include stainless steel semi-finished products, cut length flat-rolled products (
The stainless steel bar subject to this investigation is currently classifiable under subheadings 7222.11.00.05, 7222.11.00.50, 7222.19.00.05, 7222.19.00.50, 7222.20.00.05, 7222.20.00.45, 7222.20.00.75, and 7222.30.00.00 of the
In accordance with our regulations, we set aside a period of time for parties to raise issues regarding product coverage and encouraged all parties to submit comments within 20 calendar days of publication of the
• stainless steel tool steel
• welding wire
• special-quality oil field equipment steel (SQOFES)
• special profile wire
We have addressed these requests in a Memorandum to Susan Kuhbach and Louis Apple from the Stainless Steel Bar Team, dated July 26, 2001, entitled “Scope Exclusion Requests,” and a Memorandum to Louis Apple from the Stainless Steel Bar Team, dated July 26, 2001, entitled “Whether Special Profile Wire Product is Included in the Scope of the Investigation.” Our conclusions are summarized below.
Regarding stainless steel tool steel, welding wire, and SQOFES, after considering the respondents' comments and the petitioners' objections to the exclusion requests, we preliminarily determine that the scope is not overly broad. Therefore, stainless steel tool steel, welding wire, and SQOFES are within the scope of these SSB investigations. In addition, we preliminarily determine that SQOFES does not constitute a separate class or kind of merchandise from SSB.
Regarding special profile wire, we have preliminarily determined that this product does not fall within the scope as it is written because its cross section is in the shape of a concave polygon. Therefore, we have not included special profile wire in these investigations.
Finally, we note that in the concurrent countervailing duty investigation of stainless steel bar from Italy, the Department preliminarily determined that hot-rolled stainless steel bar is within the scope of these investigations. (
The POI is October 1, 1999, through September 30, 2000.
While A&D attempted to respond to the Department's questionnaires, it did not provide usable data for purposes of our preliminary margin analysis. Specifically, the databases provided in its latest submissions to the Department cannot serve as an appropriate basis for a margin calculation. Given the time limitations between the receipt of A&D's last submissions to the Department and the Department's preliminary determination, we were unable to issue A&D a supplemental questionnaire requesting revised data and receive it in time for use in the preliminary determination.
Given that the necessary information to calculate A&D's margin is not available for the preliminary determination, the Department has determined that facts available is warranted in accordance with section 776(a) of the Act. Because A&D has attempted to cooperate in this investigation, as facts available, we have assigned A&D the simple average of the margins in the petition. Prior to verification, we will give A&D an opportunity to provide revised data for use in the final determination.
Section 776(c) of the Act provides that, when the Department relies on secondary information (such as the petition) in using the facts otherwise available, it must, to the extent practicable, corroborate that information from independent sources that are reasonably at its disposal. In this case, when analyzing the petition for purposes of the initiation, we reviewed all of the data upon which the petitioners relied in calculating the estimated dumping margins, and determined that the margins in the petition were appropriately calculated and supported by adequate evidence in accordance with the statutory requirements for initiation. In order to corroborate the petition margins for purposes of using them as fact available, we re-examined the price and cost information provided in the petition in light of information developed during this investigation. (
In accordance with section 776(c) of the Act, we were able to corroborate the information in the petition using information from independent sources that were reasonably at our disposal. As a result, we have preliminarily assigned A&D the simple average of the margins contained in the petition, 28.07 percent.
For U-SI, to determine whether sales of SSB from France to the United States were made at less than fair value (“LTFV”), we compared the export price (“EP”) or constructed export price (“CEP”) to the Normal Value (“NV”), as described in the “Export Price” and “Constructed Export Price” and “Normal Value” sections of this notice, below. In accordance with section 777A(d)(1)(A)(i) of the Act, we compared POI weighted-average EPs and CEPs to weighted-average NVs.
In accordance with section 771(16) of the Act, we considered all products produced and sold by U-SI in the home market during the POI that fit the description in the “Scope of Investigation” section of this notice to be foreign like products for purposes of determining appropriate product comparisons to U.S. sales. We compared U.S. sales to sales made in the home market, where appropriate. Where there were no sales of identical merchandise in the home market made in the ordinary course of trade to compare to U.S. sales, we compared U.S. sales to sales of the most similar foreign like product made in the ordinary course of trade. In making the product comparisons, we matched foreign like products based on the physical
With respect to grade, we matched products sold in the U.S. and home markets on the basis of the three most similar matches proposed by the respondent, where possible.
On July 10 and 13, 2001, the petitioners submitted general comments on product matching issues for the Department's consideration in the preliminary determination. These comments were not received in time to be fully analyzed for the preliminary determination, but will be considered for the final determination.
In its June 11, 2001, submission, U-SI indicated that it had contracted the services of its Italian affiliate (
In its June 11, 2001, supplemental questionnaire response, U-SI requested that it be excluded from reporting downstream sales in the United States made by its affiliate Techalloy (
We calculated CEP in accordance with section 772(b) of the Act. We found that U-SI made CEP sales during the POI because the sales were made for the account of U-SI by the respondent's subsidiary in the United States to unaffiliated purchasers. In addition, U-SI reported sales of SSB which were further processed by its affiliate US&A in the United States. For the subject merchandise further processed in the United States, we used the starting price of the subject merchandise and deducted the costs of the further processing to determine CEP for such merchandise, in accordance with section 772(d)(2) of the Act.
We based CEP on the packed CIF delivered or undelivered prices to unaffiliated purchasers in the United States. We identified the correct starting price, by adjusting for billing corrections, freight revenue and other revenue associated with the sale, and by making deductions for early payment discounts, where applicable. We also made deductions for movement expenses in accordance with section 772(c)(2)(A) of the Act; these included, where appropriate, foreign inland freight (including freight from the plant/warehouse to the port of exportation), ocean freight, marine insurance, U.S. customs duties and fees (including harbor maintenance fees, merchandise processing fees, and brokerage and handling), U.S. inland freight expenses (including freight from the U.S. port to the warehouse, freight between warehouses, and freight from the warehouse to the unaffiliated customer), and other U.S. transportation expenses (including brokerage and handling fees). In accordance with section 772(d)(1) of the Act, we deducted those selling expenses associated with economic activities occurring in the United States, including direct selling expenses (commissions, credit costs, warranty expenses, technical service expenses, and repacking expenses), and indirect selling expenses (including inventory carrying costs) incurred in the country of exportation and the United States. We recalculated US&A's reported warranty expenses on a customer-specific basis (rather than overall sales) based on the information in the record, because this recalculation is more specific to the sales in question.
In order to determine whether there is a sufficient volume of sales in the home market to serve as a viable basis for calculating NV (
The Department's standard practice with respect to the use of home market sales to affiliated parties for NV is to determine whether such sales are at arm's-length prices. Therefore, in accordance with that practice, we performed an arm's-length test on U-SI's sales to affiliates as follows.
Sales to affiliated customers in the home market not made at arm's-length prices were excluded from our analysis because we considered them to be outside the ordinary course of trade.
Where, for the tested models of subject merchandise, prices to the affiliated party were on average 99.5 percent or more of the price to the
For the preliminary determination, we disallowed U-SI's claim that the movement expenses (
Based on our analysis of an allegation contained in the petition, we found that there were reasonable grounds to believe or suspect that sales of SSB in the home market were made at prices below their COP. Accordingly, pursuant to section 773(b) of the Act, we initiated a country-wide sales-below-cost investigation to determine whether sales were made at prices below their respective COP.
In accordance with section 773(b)(3) of the Act, we calculated COP based on the sum of the cost of materials and fabrication for the foreign like product, plus an amount for G&A expenses, interest expenses, and home market packing costs (
We disallowed U-SI's claim that the movement expenses (
As explained above, we recategorized a portion of U-SI's indirect selling and packing expenses associated with transferring semi-finished SSB from U-SI to UFS/US-F for further processing as G&A expenses.
We also adjusted U-SI's G&A costs to include the provision for material price fluctuations which U-SI excluded from its G&A expense calculation. Additionally, we increased the G&A expenses by the amount for “exceptional items.” While U-SI identified the “exceptional items” as income and reduced the G&A expenses by this amount, these items are shown as expenses on U-SI's income statement.
We adjusted U-SI's U.S. further manufacturing costs to include the material yield loss for all products based on output quantity.
On a product-specific basis, we compared the adjusted weighted-average COP to the home market sales of the foreign like product, as required under section 773(b) of the Act, in order to determine whether the sale prices were below the COP. The prices were exclusive of any applicable movement charges, rebates, discounts, and direct and indirect selling expenses. In determining whether to disregard home market sales made at prices less than their COP, we examined, in accordance with sections 773(b)(1)(A) and (B) of the Act, whether such sales were made (1) within an extended period of time, (2) in substantial quantities, and (3) at prices which not permit the recovery of all costs within a reasonable period of time.
Pursuant to section 773(b)(1), where less than 20 percent of the respondent's sales of a given product are at prices less than the COP, we do not disregard any below-cost sales of that product, because we determine that in such instances the below-cost sales were not made in “substantial quantities.” Where 20 percent or more of a respondent's sales of a given product are at prices less than the COP, we disregard those sales of that product, because we determine that in such instances the below-cost sales represent “substantial quantities” within an extended period of time, in accordance with section 773(b)(1)(A) of the Act. In such cases, we also determine whether such sales were made at prices which would not permit recovery of all costs within a reasonable period of time, in accordance with section 773(b)(1)(B) of the Act.
We found that, for certain specific products, more than 20 percent of U-SI's home market sales were at prices less than the COP, and in addition, such sales were made within an extended period of time and did not provide for the recovery of costs within a reasonable period of time. We therefore excluded these sales and used the remaining above-cost sales as the basis for determining NV in accordance with section 773(b)(1) of the Act.
Section 773(a)(1)(B)(i) of the Act states that, to the extent practicable, the Department will calculate NV based on sales at the same level of trade (“LOT”) as the EP or CEP. Sales are made at different LOTs if they are made at different marketing stages (or their equivalent). 19 CFR 351.412(c)(2). Substantial differences in selling
Pursuant to section 773(a)(1)(B)(i) of the Act, in identifying levels of trade for EP and comparison market sales (
When the Department is unable to match U.S. sales of the foreign like product in the comparison market at the same LOT as the EP or CEP, the Department may compare the U.S. sale to sales at a different LOT in the comparison market. In comparing EP or CEP sales at a different LOT in the comparison market, where available data make it practicable, we make a LOT adjustment under section 773(a)(7)(A) of the Act. Finally, for CEP sales only, if a NV LOT is more remote from the factory than the CEP LOT and we are unable to make a LOT adjustment, the Department shall grant a CEP offset, as provided in section 773(a)(7)(B) of the Act.
We obtained information from U-SI regarding the marketing stages involved in making the reported home market and U.S. sales, including a description of the selling activities performed by the respondents for each channel of distribution. Upon review of this information, the Department found two LOTs in the home market and one LOT in the U.S. market. Where we matched U.S. sales to home market sales at a different LOT, we made a LOT adjustment in accordance with section 773(a)(7)(A) of the Act because we found that there was a pattern of consistent price differences between the two home market LOTs. Our LOT findings are summarized below:
U-SI reported two customer categories (
U-SI also claims that, because its affiliate offers significantly different services and the orders are not limited by quantity for ex-inventory sales of specialized SSB when compared to ex-inventory sales of standard SSB products, UFS/U-SF charges higher prices for its sales of specialized SSB products. Therefore, U-SI requests a LOT adjustment on this basis.
In determining whether separate levels of trade actually existed in the home market, we examined whether the sales made by U-SI involved different marketing stages (or their equivalent) based on the channel of distribution, customer categories and selling functions. As noted above, U-SI's ex-inventory sales are made through the same affiliated party, the same channel of distribution, and to the same categories of customers (
With respect to selling activities, we note that, in some instances, the activities U-SI characterized as selling functions (
In addition, we also examined whether U-SI's direct ex-works sales and ex-inventory sales of both standard and specialized SSB involved different marketing stages (or their equivalent) based on the channel of distribution, customer categories and selling functions reported for each claimed LOT. We note that the selling functions (
U-SI reported only CEP sales in the U.S. market. For its U.S. sales, U-SI reported two channels of distribution (
Based on our examination of U-SI's data, the evidence on the record suggests that U-SI performs the same selling functions (
We then examined U-SI's submitted data to determine whether U-SI's U.S. sales to US&A were made at the same LOT as U-SI's direct ex-works sales were made in the home market. Based on our examination, the evidence on the record suggests, contrary to U-SI's assertion, that U-SI performs the same selling functions (
We calculated NV based on delivered prices to unaffiliated customers or prices to affiliated customers that we determined to be at arm's length. We made adjustments, where appropriate, to the starting price for billing corrections and early payment discounts. We made deductions, where appropriate, from the starting price for inland freight (from the plant to the warehouse or plant to the customer), warehousing expenses, and inland insurance (see discussion above regarding the Department's treatment of certain movement and selling expenses reported for two channels of distribution associated with sales made through UFS/US-F).
We made adjustments for differences in costs attributable to differences in the physical characteristics of the merchandise in accordance with section 773(a)(6)(C)(ii) of the Act and 19 CFR 351.411. In addition, we made adjustments under section 773(a)(6)(C)(iii) of the Act and 19 CFR 351.410 for differences in circumstances of sale for imputed credit expenses and warranty expenses (
We recategorized certain expenses (
U-SI (through its U.S. affiliate) paid commissions to unaffiliated sales intermediaries on some U.S. sales of subject merchandise but did not pay commissions on its home market sales which were at arms-length. Therefore, in accordance with 19 CFR 351.410(e), we offset the commission incurred in the U.S. market, with indirect selling expenses incurred in the home market to the extent of the lesser of the commission or the indirect selling expenses. As indirect selling expenses, we used both U-SI's reported home market inventory carrying costs and indirect selling expenses.
We also deducted home market packing costs and added U.S. packing costs in accordance with section 773(a)(6)(A) and (B) of the Act. Finally, we made an adjustment for differences in LOT under section 773(a)(7)(A) of the Act and 19 CFR 351.412(b)-(e) (
We made currency conversions into U.S. dollars in accordance with section 773A(a) of the Act based on the exchange rates in effect on the dates of the U.S. sales as certified by the Federal Reserve Bank or reported by the Dow Jones, as appropriate.
As provided in section 782(i) of the Act, we will verify all information relied upon in making our final determination.
In accordance with section 733(d)(2) of the Act, we are directing the Customs Service to suspend liquidation of all imports of subject merchandise that are entered, or withdrawn from warehouse, for consumption on or after the date of publication of this notice in the
In accordance with section 733(f) of the Act, we have notified the ITC of our determination. If our final determination is affirmative, the ITC will determine before the later of 120 days after the date of this preliminary determination or 45 days after our final determination whether these imports are materially injuring, or threaten material injury to, the U.S. industry.
We will disclose the calculations used in our analysis to parties in this proceeding in accordance with 19 CFR 351.224(b).
Case briefs for this investigation must be submitted to the Department no later than November 2, 2001. Rebuttal briefs must be filed by November 9, 2001. A
Interested parties who wish to request a hearing, or to participate if one is requested, must submit a written request to the Assistant Secretary for Import Administration, U.S. Department of Commerce, Room 1870, within 30 days of the publication of this notice. Requests should contain: (1) The party's name, address, and telephone number; (2) the number of participants; and (3) a list of the issues to be discussed. Oral presentations will be limited to issues raised in the briefs.
If this investigation proceeds normally, we will make our final determination by no later than 135 days after the publication of this notice in the
This determination is published pursuant to sections 733(f) and 777(i) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
Notice of preliminary determination of sales at less than fair value.
We preliminarily determine that stainless steel bar from Germany is being, or is likely to be, sold in the United States at less than fair value, as provided in section 733(b) of the Tariff Act of 1930, as amended.
Interested parties are invited to comment on this preliminary determination. Since we are postponing the final determination, we will make our final determination not later than 135 days after the date of publication of this preliminary determination in the
August 2, 2001.
Craig Matney, Meg Weems or Andrew Covington, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone: (202) 482-1778, (202) 482-2613, or (202) 482-3534, respectively.
Unless otherwise indicated, all citations to the Tariff Act of 1930, as amended (“the Act”), are references to the provisions effective January 1, 1995, the effective date of the amendments made to the Act by the Uruguay Round Agreements Act (“URAA”). In addition, unless otherwise indicated, all citations to the Department of Commerce (“Department's”) regulations are to 19 CFR part 351 (April 2000).
Since the initiation of this investigation (
On January 26, 2001, we solicited comments from interested parties regarding the criteria to be used for model-matching purposes. We received comments on our proposed matching criteria on February 8 and 9, 2001.
On February 12, 2001, the United States International Trade Commission (“ITC”) preliminarily determined that there is a reasonable indication that imports of stainless steel bar (“SSB”) from Germany are materially injuring the United States industry (
On February 21, 2001 , we selected the four largest producers/exporters of SSB from Germany as the mandatory respondents in this proceeding. For further discussion,
On February 13, 2001, EWK requested that “tool steel” be excluded from the scope of this investigation. On February 13, 2001, BGH requested that “special quality oil field equipment steel” be excluded from the scope of this investigation.
In February and March 2001, the petitioners in this case (
On March 6, 2001, Einsal requested that it be relieved from the requirement to report affiliated party resales because sales of the foreign like product to affiliated parties during the POI constituted less than five percent of total sales of the foreign like product. On April 3, 2001, we granted Einsal's request in accordance with 19 CFR 351.403(d). (
On March 21, 2001, BGH requested that it be relieved from the requirement to report affiliated party resales because sales of the foreign like product to affiliated parties during the POI constituted less than five percent of total sales of the foreign like product. On April 6, 2001, we granted BGH's request in accordance with 19 CFR 351.403(d). (
On March 21, 2001, EWK requested that it be relieved from the requirement to report affiliated party resales even though sales of the foreign like product to affiliated parties during the POI constituted more than five percent of total sales of the foreign like product. For the reasons stated in a Memorandum to Richard W. Moreland, dated May 11, 2001, we granted EWK's request.
On March 22, 2001, KEP requested that it be relieved from the requirement to report affiliated party resales even though sales of the foreign like product to affiliated parties during the POI constituted more than five percent of total sales of the foreign like product. For the reasons stated in a Memorandum to Richard W. Moreland, dated June 21, 2001, we granted KEP's request.
On April 17, 2001, BGH requested that it be allowed to report its cost data on a fiscal-year basis rather than a POI basis. For the reasons outlined in the letter dated May 2, 2001, we denied this request.
During the period March through June 2001, the Department received responses to Sections A, B, C and D of the Department's original and supplemental questionnaires from BGH, Einsal, EWK, and KEP.
On April 27, 2001, pursuant to 19 CFR 351.205(e), the petitioners made a timely request to postpone the preliminary determination. We granted this request on May 7, 2001, and postponed the preliminary determination until no later than July 26, 2001. (
Pursuant to section 735(a)(2)(A) of the Act, on July 17 and 20, 2001, BGH and Einsal, and EWK and KEP, respectively, requested that, in the event of an affirmative preliminary determination in this investigation, the Department postpone its final determination until not later than 135 days after the date of the publication of the preliminary determination in the
For purposes of this investigation, the term “stainless steel bar” includes articles of stainless steel in straight lengths that have been either hot-rolled, forged, turned, cold-drawn, cold-rolled or otherwise cold-finished, or ground, having a uniform solid cross section along their whole length in the shape of circles, segments of circles, ovals, rectangles (including squares), triangles, hexagons, octagons, or other convex polygons. Stainless steel bar includes cold-finished stainless steel bars that are turned or ground in straight lengths, whether produced from hot-rolled bar or from straightened and cut rod or wire, and reinforcing bars that have indentations, ribs, grooves, or other deformations produced during the rolling process.
Except as specified above, the term does not include stainless steel semi-finished products, cut length flat-rolled products (
The stainless steel bar subject to this investigation is currently classifiable under subheadings 7222.11.00.05, 7222.11.00.50, 7222.19.00.05, 7222.19.00.50, 7222.20.00.05, 7222.20.00.45, 7222.20.00.75, and 7222.30.00.00 of the
In accordance with our regulations, we set aside a period of time for parties to raise issues regarding product coverage and encouraged all parties to submit comments within 20 calendar days of publication of the
• Stainless Steel Tool Steel
• Welding Wire
• Special-Quality Oil Field Equipment Steel (“SQOFES”)
• Special Profile Wire
We have addressed these requests in the Memorandum to Susan Kuhbach and Louis Apple from The Stainless Steel Bar Team, dated July 26, 2001, entitled “Scope Exclusion Requests,” and the Memorandum to Louis Apple from The Stainless Steel Bar Team, dated July 26, 2001, entitled “Whether Special Profile Wire Product is Included in the Scope of the Investigation.” Our conclusions are summarized below.
Regarding stainless steel tool steel, welding wire, and SQOFES, after considering the respondents' comments and the petitioners' objections to the exclusion requests, we preliminarily determine that the scope is not overly broad. Therefore, stainless steel tool steel, welding wire, and SQOFES are within the scope of these SSB investigations. In addition, we preliminarily determine that SQOFES does not constitute a separate class or kind of merchandise from SSB.
Regarding special profile wire, we have preliminarily determined that this product does not fall within the scope as it is written because its cross section is in the shape of a concave polygon. Therefore, we have not included special profile wire in these investigations.
Finally, we note that in the concurrent countervailing duty investigation of stainless steel bar from Italy, the Department preliminarily determined that hot-rolled stainless steel bar is within the scope of these investigations. (
The POI is October 1, 1999, through September 30, 2000.
KEP and EWK are affiliated parties within the meaning of section 771(33)(F) by virtue of their ultimate ownership by a common parent company, ThyssenKrupp AG. Section 351.401(f)(1) of the Department's regulations explains that the Department will treat affiliated producers as a single entity where those producers have production facilities for similar or identical products that would not require substantial retooling of either facility in order to restructure manufacturing priorities and the Department concludes that there is a significant potential for the manipulation of price or production.
KEP and EWK have argued that the two entities should not be collapsed because the current overlap in their production capability is minimal, there is little overlap in the current boards of directors, and the transactions between the two companies are similar to transactions with other, non-affiliated bar producers. Furthermore, they have argued that the cost to retool either or both of the plants to substantially increase one or both of their production ranges would be extremely high. Petitioners have argued that the current overlap is significant and that the cost of retooling KEP's and/or EWK's production facilities to produce a substantially expanded product range is not significant in relation to the resources available to ThyssenKrupp AG. Additionally, petitioners contend that the overlap in the boards of directors, the transactions between the two companies, and the potential for increased interactions between the two companies at the behest of ThyssenKrupp AG provide a significant potential for manipulation of production.
In conducting this analysis of whether KEP and EWK should be treated as a single entity under section 351.401(f) of the regulations, we first observe that KEP and EWK are affiliated with each other due to the fact that they are both wholly-owned by ThyssenKrupp AG. We also observe, as a preliminary matter, that KEP and EWK are producers with production facilities for similar products. In this regard, we acknowledge that there is limited overlap between the products produced by KEP and EWK. However, the level of existing overlap means that, even with no retooling, manufacturing priorities could be restructured.
Given these preliminary findings under section 351.401(f)(1), we turn to an analysis of the significant potential for the manipulation of price or production under section 351.401(f)(2). In conducting such an analysis, the factors the Department may consider include the level of common ownership, common managerial employees or board members on the respective boards of directors, and whether the operations of the companies are intertwined. The companies are wholly-owned by a single ultimate parent company and share two members of their respective managerial boards of directors, though KEP and EWK claim that the managerial board is not involved in the day to day operations of either firm. With regard to intertwined operations, KEP and EWK have an established relationship in which they sell each other's merchandise and purchase certain raw materials from each other and from common affiliated suppliers. In addition, by virtue of its complete ownership of the two firms, ThyssenKrupp AG potentially could dictate future production and pricing decisions and the sharing of sales information, facilities or employees.
Based on this information, we preliminarily determine that within the current production overlap there is a potential for manipulation, and that the extent of the current overlap is large enough that any manipulation could be significant. Therefore, for the preliminary determination, we have calculated a single dumping margin for KEP and EWK by weight-averaging the two firms' individually-calculated dumping margins. For the final determination, we intend to request that KEP and EWK report combined sales and cost data.
We invite comments from parties on this issue for the final determination, in particular as to whether the current production overlap provides a significant potential for price or production manipulation.
To determine whether sales of SSB from Germany to the United States were made at less than fair value (“LTFV”), we compared the export price (“EP”) or constructed export price (“CEP”) to the Normal Value (“NV”), as described in the “Export Price” and “Constructed Export Price” and “Normal Value” sections of this notice, below. In accordance with section 777A(d)(1)(A)(i) of the Act, we compared POI weighted-average EPs and CEPs to NVs.
In accordance with section 771(16) of the Act, we considered all products produced and sold by the respondents in the home market during the POI that fit the description in the “Scope of Investigation” section of this notice to be foreign like products for purposes of determining appropriate product comparisons to U.S. sales. We compared U.S. sales to sales made in the home market, where appropriate. Where there were no sales of identical merchandise in the home market made in the ordinary course of trade to compare to U.S. sales, we compared U.S. sales to sales of the most similar foreign like product made in the ordinary course of trade. In making the product comparisons, we matched foreign like products based on the physical characteristics reported by the respondents in the following order of importance: general type of finish; grade; remelting process; type of final finishing operation; shape; and size. With respect to grade, we matched products sold in the U.S. and home markets on the basis of the three most similar matches proposed by the respondent, where possible.
On July 11 and 13, 2001, the petitioners submitted general comments on product-matching issues for the Department's consideration in the preliminary determination. These comments were not received in time to be fully analyzed for the preliminary determination, but will be considered for the final determination.
For all respondents, we calculated EP, in accordance with section 772(a) of the Act, for those sales where the merchandise was sold to the first unaffiliated purchaser in the United States prior to importation by the exporter or producer outside the United States, or to an unaffiliated purchaser for exportation to the United States, based on the facts of record. We based EP on the packed delivered price to unaffiliated purchasers in the United States. We identified the correct starting price by adding any surcharges, making adjustments for any price-billing errors and freight revenue, and making deductions for early payment discounts and rebates, where applicable. We also made deductions from the starting price for movement expenses in accordance with section 772(c)(2)(A) of the Act; these included, where appropriate, domestic inland freight, ocean freight, marine insurance, U.S. brokerage and handling, U.S. customs duties (including harbor maintenance fees and merchandise processing fees), and U.S. inland freight.
For KEP and EWK, we calculated CEP, in accordance with subsection
We based CEP on the packed FOB or delivered prices to unaffiliated purchasers in the United States. Where appropriate, we made adjustments for price-billing errors and freight revenue, and made deductions for early payment discounts and rebates in order to identify the correct starting price. We also made deductions for movement expenses in accordance with section 772(c)(2)(A) of the Act; these included, where appropriate, ocean freight, marine insurance, U.S. brokerage and handling, U.S. customs duties (including harbor maintenance fees and merchandise processing fees), U.S. inland insurance, U.S. inland freight expenses, and warehousing expenses. In accordance with section 772(d)(1) of the Act, we deducted those selling expenses associated with economic activities occurring in the United States, including direct selling expenses (credit costs and warranty expenses), inventory carrying costs, and indirect selling expenses. Where payment dates were unreported, we recalculated the credit expenses using the date of the preliminary determination in place of actual date of payment. Lastly, we made an adjustment for profit in accordance with section 772(d)(3) of the Act.
In order to determine whether there is a sufficient volume of sales in the home market to serve as a viable basis for calculating NV (
The Department's standard practice with respect to the use of home market sales to affiliated parties for NV is to determine whether such sales are at arm's-length prices. Therefore, in accordance with that practice, we performed an arm's-length test on each respondent's sales to affiliates as follows.
Sales to affiliated customers in the home market not made at arm's-length prices (if any) were excluded from our analysis because we considered them to be outside the ordinary course of trade.
Based on our analysis of an allegation contained in the petition, we found that there were reasonable grounds to believe or suspect that sales of SSB in the home market were made at prices below their cost of production (COP). Accordingly, pursuant to section 773(b) of the Act, we initiated a country-wide sales-below-cost investigation to determine whether sales were made at prices below their respective COP (
In accordance with section 773(b)(3) of the Act, we calculated COP based on the sum of the cost of materials and fabrication for the foreign like product, plus an amount for general and administrative expenses (G&A), interest expenses, and home market packing costs (see “Test of Home Market Sales Prices” section below for treatment of home market selling expenses). We relied on the COP data submitted by the respondents, except where noted below:
On a product-specific basis, we compared the adjusted weighted-average COP to the home market sales of the foreign like product, as required under section 773(b) of the Act, in order to determine whether the sale prices were below the COP. The prices were exclusive of any applicable movement charges, billing adjustments, discounts, rebates, commissions, interest revenue, warranty expenses, other direct and indirect selling expenses. In determining whether to disregard home market sales made at prices less than their COP, we examined whether such sales were made (1) within an extended period of time, (2) in substantial quantities, and (3) at prices which did not permit the recovery of all costs within a reasonable period of time.
Pursuant to section 773(b)(1), where less than 20 percent of the respondent's sales of a given product are at prices less than the COP, we do not disregard any below-cost sales of that product, because we determine that in such instances the below-cost sales were not made in “substantial quantities.” Where 20 percent or more of a respondent's sales of a given product are at prices less than the COP, we disregard those sales of that product, because we determine that in such instances the below-cost sales represent “substantial quantities” within an extended period of time, in accordance with section 773(b)(1)(A) of the Act. In such cases, we also determine whether such sales were made at prices which would not permit recovery of all costs within a reasonable period of time, in accordance with section 773(b)(1)(B) of the Act.
We found that, for certain specific products, more than 20 percent of each of the respondent's home market sales were at prices less than the COP and, in addition, such sales were made within a reasonable period of time and did not provide for the recovery of costs. We therefore excluded these sales and used the remaining above-cost sales, if any, as the basis for determining NV, in accordance with section 773(b)(1).
Section 773(a)(1)(B)(i) of the Act states that, to the extent practicable, the Department will calculate NV based on sales at the same level of trade (“LOT”) as the EP or CEP. Sales are made at different LOTs if they are made at different marketing stages (or their equivalent). 19 CFR 351.412(c)(2). Substantial differences in selling activities are a necessary, but not sufficient, condition for determining that there is a difference in the stages of marketing.
Pursuant to section 773(a)(1)(B)(i) of the Act, in identifying levels of trade for EP and comparison market sales (
When the Department is unable to match U.S. sales to sales of the foreign like product in the comparison market at the same LOT as the EP or CEP, the Department may compare the U.S. sale to sales at a different LOT in the comparison market. In comparing EP or CEP sales at a different LOT in the comparison market, where available data make it practicable, we make a LOT adjustment under section 773(a)(7)(A) of the Act. Finally, for CEP sales only, if a NV LOT is more remote from the factory than the CEP LOT and we are unable to make a level of trade adjustment, the Department shall grant a CEP offset, as provided in section 773(a)(7)(B) of the Act.
We obtained information from each respondent regarding the marketing stages involved in making the reported home market and U.S. sales, including a description of the selling activities performed by the respondents for each channel of distribution. Company-specific LOT findings are summarized below:
We examined the chain of distribution and the selling activities associated with sales reported by BGH to its four channels of distribution in the home market, and where appropriate, to distinct customer categories within these channels. We found that distribution channels 1 and 2, which related to produce-to-order sales to distributors and end-users, were similar with respect to sales process, freight services, warehouse/inventory maintenance and warranty service and, therefore, constituted a distinct level of trade (LOTH 1). We found that distribution channels 3 and 4, which related to warehouse inventory sales to distributors and end-users, were similar with respect to sales process, freight services, warehouse/inventory maintenance and warranty service to constitute a distinct level of trade (LOTH 2). However, we found that LOTH 2 differed significantly from LOTH 1 with respect to freight service and warehouse/inventory maintenance. Based upon our overall analysis in the home market, we found that LOTH 1 and LOTH 2 constituted two different levels of trade.
BGH reported EP sales through two channels of distribution, produce-to-order sales to distributors (channel 1) and produce-to-order sales to end-users (channel 2). We examined the chain of distribution and the selling activities associated with sales through these channels and found them to be similar with respect to sales process, freight services, warehouse/inventory maintenance and warranty service. Therefore, we preliminarily determine that the two channels constitute a single level of trade (LOTU 1).
This EP level of trade differed considerably from LOTH 2 with respect to freight services and warehousing/inventory maintenance. However, the EP level of trade was similar to LOTH 1 with respect to sales process, freight services, warehouse/inventory maintenance and warranty service. Consequently, we matched the EP sales to sales at the same level of trade in the home market (LOTH 1). Where no matches at the same level of trade were possible, and there was a pattern of consistent price differences between different levels of trade, we matched to sales in LOTH 2 and, where appropriate, we made a level of trade adjustment.
Einsal has reported two home market channels of distribution: Direct sales and consignment sales. In the home market, Einsal sells to master distributors, regional service centers, and end users. Sales to all customer categories in both these channels of distribution were similar with respect to sales process, freight services, warehouse/inventory maintenance and warranty service. Accordingly, we preliminarily determine that home market sales in these two channels of distribution to these three customer categories constitute a single level of trade.
In the U.S. market, Einsal had only EP sales. Einsal reported EP sales to master distributors and end users through only one channel of distribution, direct sales. Sales to these customer categories through this channel of distribution were similar with respect to sales process, freight services, warehouse/inventory maintenance and warranty service. Accordingly, we preliminarily find that Einsal had only one level of trade for its EP sales.
This EP level of trade was similar to that of the home market with respect to sales process, warehouse/inventory maintenance and warranty service, and differed only slightly with respect to freight and delivery. Consequently, we matched Einsal's U.S. sales to the single home market LOT. Thus, it was unnecessary to make any level-of-trade adjustment.
EWK reported two channels of distribution in the home market: (1) Mill direct sales to order (channel 1); and (2) mill sales from stock (channel 2). Both of these channels serviced all customer types (
In the U.S. market, EWK had both EP and CEP sales. EWK reported EP sales through only one channel of distribution and to one customer category, and therefore had only one level of trade for its EP sales. This EP level of trade differed considerably from the home market level of trade LOTH 2 with respect to freight services and warehouse/inventory maintenance. We found that LOTH 1 was similar to the EP level of trade with respect to sales process, freight services, warehouse/inventory maintenance, and warranty service. Consequently, we matched EWK's EP sales to sales at the same level of trade in the home market (LOTH 1). Where no matches at the same level of trade were possible, and there was a pattern of consistent price differences between different levels of trade, we matched to sales in LOTH 2 and, where appropriate, we made a level of trade adjustment.
EWK's constructed CEP level of trade was its sales to its affiliated reseller and since it performed the same selling functions for all of these sales, we found that these CEP sales constitute one level of trade. This CEP level of trade differed considerably from the home market level of trade LOTH 2 with respect to sales process and inventory maintenance. We found that LOTH 1 was similar to the CEP LOT with respect to sales process, warehouse/inventory maintenance, and warranty service and differed only slightly with respect to delivery services.
Because we found the CEP LOT to be similar to home market level of trade LOTH 1, where possible, we matched CEP sales to normal value based on home market sales in LOTH 1 and made no CEP offset adjustment. Where we did not match products at the same level of trade, and there was a pattern of consistent prices differences between different levels of trade, we made a level of trade adjustment. See section 773(a)(7)(A). Where we did not match products at the same level of trade, and we were unable to make a level of trade adjustment because the home market level of trade was at a more advanced stage of distribution than the CEP level of trade, we made a CEP offset in accordance with section 773(a)(7)(B) of the Act.
KEP reported two channels of distribution in the home market: (1) Mill direct sales to order (channel 1); and (2) mill sales from stock (channel 2). KEP sold to service centers and end users through both of these distribution channels. We found that channel 1 produce-to-order sales to both customer categories were similar with respect to sales process, freight services, and warehouse/inventory maintenance, and, therefore, constituted a distinct level of trade (LOTH 1). We found that distribution channel 2 sales from stock to service centers and end users were similar with respect to sales process, freight services, and warehouse/inventory maintenance, and varied only slightly with respect to warranty service, to constitute a distinct level of trade (LOTH 2). However, we found that LOTH 2 differed significantly from LOTH 1 with respect to freight services and warehouse/inventory maintenance. Based on our overall analysis of the home market, we found that LOTH 1 and LOTH 2 constituted two different levels of trade.
In the U.S. market, KEP had both EP and CEP sales. KEP reported EP sales through only one channel of distribution and to one customer category, and therefore had only one level of trade for its EP sales. This EP level of trade differed considerably from the home market level of trade LOTH 2 with respect to freight services, warehouse/inventory maintenance, and warranty service. We found that LOTH 1 was similar to the EP level of trade with respect to sales process, freight services, and warehouse/inventory maintenance, and differed only slightly with respect to warranty service. Consequently, we matched KEP's EP sales to sales at the same level of trade in the home market (LOTH 1). Where no matches at the same level of trade were possible, and there was a pattern of consistent price differences between different levels of trade, we matched to sales in LOTH 2 and, where appropriate, we made a level of trade adjustment.
KEP's constructed CEP level of trade was its sales to its affiliated reseller and since it performed the same selling functions for all of these sales, we found that these CEP sales constitute one level of trade. This CEP level of trade differed from the home market level of trade LOTH 2 principally with respect to warehouse/inventory maintenance and warranty service. We found that LOTH 1 was similar to the CEP LOT with respect to delivery services and warehouse/inventory maintenance and differed only slightly with respect to sales process.
Because we found the CEP LOT to be similar to home market level of trade LOTH 1, where possible, we matched CEP sales to normal value based on home market sales in LOTH 1 and made no CEP offset adjustment. Where we did not match products at the same level of trade, and there was a pattern of consistent prices differences between different levels of trade, we made a level of trade adjustment.
We calculated NV based on delivered prices to unaffiliated customers or prices to affiliated customers that we determined to be at arm's length. We identified the correct starting price by making adjustments for surcharges and billing errors, and making deductions for discounts and rebates. We also made adjustments for movement expenses, including inland freight, inland insurance and warehousing, where appropriate, under section 773(a)(6)(B)(ii). We adjusted KEP's method of allocating its reported warehousing expenses (
Finally, where appropriate, we made an adjustment for differences in LOT under section 773(a)(7)(A) of the Act and 19 CFR 351.412(b)-(e). Additionally, for comparisons to CEP sales, where appropriate, we deducted from normal value the lesser of comparison-market indirect selling expenses and indirect selling expenses deducted from CEP (the CEP offset), pursuant to section 773(a)(7)(B) of the Act and 19 CFR 351.412(f).
We made currency conversions into U.S. dollars in accordance with section 773A(a) of the Act based on the exchange rates in effect on the dates of the U.S. sales as reported by the Dow Jones.
As provided in section 782(i) of the Act, we will verify all information relied upon in making our preliminary determination.
In accordance with section 733(d)(2) of the Act, we are directing the Customs Service to suspend liquidation of all imports of subject merchandise that are entered, or withdrawn from warehouse, for consumption on or after the date of publication of this notice in the
In accordance with section 733(f) of the Act, we have notified the ITC of our determination. If our final determination is affirmative, the ITC will determine before the later of 120 days after the date of this preliminary determination or 45 days after our final determination whether these imports are materially injuring, or threaten material injury to, the U.S. industry.
We will disclose the calculations used in our analysis to parties in this proceeding in accordance with 19 CFR 351.224(b).
Case briefs for this investigation must be submitted to the Department no later than November 7, 2001. Rebuttal briefs must be filed by November 15, 2001. A list of authorities used, a table of contents, and an executive summary of issues should accompany any briefs submitted to the Department. Executive summaries should be limited to five pages total, including footnotes. Section 774 of the Act provides that the Department will hold a public hearing to afford interested parties an opportunity to comment on arguments raised in case or rebuttal briefs, provided that such a hearing is requested by an interested party. If a request for a hearing is made in this investigation, the hearing will tentatively be held on November 19, 2001 at the U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230. Parties should confirm by telephone the time, date, and place of the hearing 48 hours before the scheduled time.
Interested parties who wish to request a hearing, or to participate if one is requested, must submit a written request to the Assistant Secretary for Import Administration, U.S. Department of Commerce, Room 1870, within 30 days of the publication of this notice. Requests should contain: (1) The party's name, address, and telephone number; (2) the number of participants; and (3) a list of the issues to be discussed. Oral presentations will be limited to issues raised in the briefs.
If this investigation proceeds normally, we will make our final determination by no later than 135 days after the publication of this notice in the
This determination is published pursuant to sections 733(f) and 777(i) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
Notice of preliminary determination of sales at less than fair value.
We preliminarily determine that stainless steel bar from Italy is being, or is likely to be, sold in the United States at less than fair value, as provided in section 733(b) of the Tariff Act of 1930, as amended.
Interested parties are invited to comment on this preliminary determination. Since we are postponing the final determination, we will make our final determination not later than 135 days after the date of publication of this preliminary determination in the
August 2, 2001.
Jarrod Goldfeder, Melani Miller, or Anthony Grasso, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-0189, (202) 482-0116, or (202) 482-3853, respectively.
Unless otherwise indicated, all citations to the Tariff Act of 1930, as amended (“the Act”), are references to the provisions effective January 1, 1995, the effective date of the amendments made to the Act by the Uruguay Round Agreements Act (“URAA”). In addition, unless otherwise indicated, all citations
Since the initiation of this investigation (
On January 26, 2001, we solicited comments from interested parties regarding the criteria to be used for model-matching purposes, and we received comments on our proposed matching criteria on February 8, February 14, and February 15, 2001.
On February 1, 2001, Acciaierie Valbruna Srl/Acciaierie Bolzano Srl (“Valbruna”), an Italian producer of the merchandise under investigation, submitted a request to the Department that the period of investigation (“POI”) be altered. On February 9, 2001, the petitioners in this case (
On February 12, 2001, the United States International Trade Commission (“ITC”) preliminarily determined that there is a reasonable indication that imports of stainless steel bar (“SSB”) from Italy are materially injuring the United States industry (
On February 21, 2001, we selected the three largest producers/exporters of SSB from Italy (Acciaiera Foroni S.p.A. (“Foroni”), Valbruna, and Cogne Acciai Speciali Srl (“Cogne”)) as the mandatory respondents in this proceeding. For further discussion,
On March 1, 2001, Valbruna requested that it be allowed to report its costs on a fiscal-year rather than a POI basis. Valbruna submitted further information with respect to its cost reporting on March 9 and March 19, 2001. The petitioners submitted comments on this request on March 14, 2001. On March 20, 2001, the Department notified Valbruna that it would be allowed to alter its cost reporting period as requested. (
On March 6, 2001, Trafilerie Bedini, Srl (“Bedini”) and Rodacciai S.p.A. (“Rodacciai”) formally requested to be treated as voluntary respondents in this investigation in response to the Department's invitation to do so in the
On March 9, 2001, Acciaierie Bertoli Safau S.p.A. (“ABS”) submitted a request to exclude hot-rolled SSB greater than six inches in diameter from the scope of this investigation. On March 26, 2001, the petitioners submitted an objection to this request. Additionally, on April 6, 2001, Rodacciai submitted a request to exclude welding wire from the scope of this investigation. The petitioners submitted a response to this request on April 24, 2001.
In February and March, 2001, the petitioners made submissions requesting that the Department require the respondents to report the actual content of the primary chemical components of SSB for each sale of SSB made during the POI. Also, in February and March 2001, the respondents in this and other concurrent SSB investigations requested that the Department deny the petitioners' request. The Department, upon consideration of the comments from all parties on this matter, issued a memorandum on April 3, 2001, indicating its decision not to require the respondents to report such information on a transaction-specific basis. However, the Department did require that respondents report certain additional information concerning SSB grades sold to the U.S. and home markets during the POI. (For details,
On March 28, 2001, Rodacciai requested that it be exempted from the requirement to report affiliated party resales even though sales of the foreign like product to affiliated parties during the POI constituted more than five percent of total sales of the foreign like product. For the reasons stated in a Memorandum from John Brinkmann to Susan Kuhbach, dated April 12, 2001, we denied Rodacciai's request. On June 15, 2001, Bedini requested that it be exempted from the requirement to report affiliated party resales because sales of the foreign like product to affiliated parties during the POI constituted less than five percent of total sales of the foreign like product. On July 6, 2001, we granted Bedini's request in accordance with 19 CFR 351.403(d). (
During the period March through July 2001, the Department received responses to Sections A, B, C, and D of the Department's original and supplemental questionnaires from Valbruna, Rodacciai, Bedini, and Foroni. The Department also received a response to Section E from Bedini.
On April 2, 2001, Rodacciai requested that it be allowed to report its costs on a fiscal-year rather than a POI basis. The petitioners submitted comments on this request on April 5, 2001. Rodacciai responded to these comments and submitted further information on April 6, 2001. On April 21, 2001, the Department notified Rodacciai that it would not be allowed to alter its cost reporting period. (
On April 27, 2001, pursuant to 19 CFR 351.205(e), the petitioners made a timely request to postpone the preliminary determination. We granted this request on May 7, 2001, and postponed the preliminary determination until no later than July 26, 2001. (
On July 6, July 9, July 10, and July 13, the petitioner submitted company-specific comments with respect to the upcoming preliminary determination.
Finally, on July 10, July 11, and July 13, 2001, the petitioners submitted
Pursuant to section 735(a)(2) of the Act, on June 4, June 5, June 12, and July 17, 2001, respectively, Foroni, Bedini, Rodacciai, and Valbruna requested that, in the event of an affirmative preliminary determination in this investigation, the Department postpone its final determination until not later than 135 days after the date of the publication of the preliminary determination in the
For purposes of this investigation, the term “stainless steel bar” includes articles of stainless steel in straight lengths that have been either hot-rolled, forged, turned, cold-drawn, cold-rolled or otherwise cold-finished, or ground, having a uniform solid cross section along their whole length in the shape of circles, segments of circles, ovals, rectangles (including squares), triangles, hexagons, octagons, or other convex polygons. Stainless steel bar includes cold-finished stainless steel bars that are turned or ground in straight lengths, whether produced from hot-rolled bar or from straightened and cut rod or wire, and reinforcing bars that have indentations, ribs, grooves, or other deformations produced during the rolling process.
Except as specified above, the term does not include stainless steel semi-finished products, cut length flat-rolled products (
The stainless steel bar subject to this investigation is currently classifiable under subheadings 7222.11.00.05, 7222.11.00.50, 7222.19.00.05, 7222.19.00.50, 7222.20.00.05, 7222.20.00.45, 7222.20.00.75, and 7222.30.00.00 of the
In accordance with our regulations, we set aside a period of time for parties to raise issues regarding product coverage and encouraged all parties to submit comments within 20 calendar days of publication of the
A. Stainless steel tool steel
B. Welding wire
C. Special-quality oil field equipment steel (“SQOFES”)
D. Special profile wire
We have addressed these requests in Memorandum to Susan Kuhbach and Louis Apple from The Stainless Steel Bar Team, dated July 26, 2001, entitled “Scope Exclusion Requests,” and Memorandum to Louis Apple from The Stainless Steel Bar Team, dated July 26, 2001, entitled “Whether Special Profile Wire Product is Included in the Scope of the Investigation.” Our conclusions are summarized below.
Regarding stainless steel tool steel, welding wire, and SQOFES, after considering the respondents' comments and the petitioners' objections to the exclusion requests, we preliminarily determined that the scope is not overly broad. Therefore, stainless steel tool steel, welding wire, and SQOFES are within the scope of these SSB investigations. In addition, we preliminarily determine that SQOFES does not constitute a separate class or kind of merchandise from SSB.
Regarding special profile wire, we have preliminarily determined that this product does not fall within the scope as it is written because its cross section is in the shape of a concave polygon. Therefore, we have not included special profile wire in these investigations.
Finally, we note that in the concurrent countervailing duty investigation of stainless steel bar from Italy, the Department preliminarily determined that hot-rolled stainless steel bar is within the scope of these investigations. (
The POI is October 1, 1999, through September 30, 2000.
On February 20, 2001, we sent an antidumping questionnaire to Cogne. On March 14, 2001, Cogne notified the Department that it would not be participating in this investigation.
Section 776(a)(2) of the Act provides that, if an interested party (1) withholds information that has been requested by the Department, (2) fails to provide such information in a timely manner or in the form or manner requested, (3) significantly impedes a determination under the antidumping statute, or (4) provides such information but the information cannot be verified, the Department shall, subject to subsections 782(c)(1) and (e) of the Act, use facts otherwise available in reaching the applicable determination. Because Cogne failed to respond to our questionnaire, we must use facts otherwise available to calculate Cogne's dumping margin.
Section 776(b) of the Act provides that adverse inferences may be used when a party has failed to cooperate by not acting to the best of its ability to comply with requests for information.
In accordance with our standard practice, we determine the margin used as adverse facts available by selecting the higher of (1) the highest margin stated in the notice of initiation, or (2) the highest margin calculated for any respondent.
Section 776(c) of the Act provides that, when the Department relies on secondary information (such as the petition) in using the facts otherwise available, it must, to the extent practicable, corroborate that information from independent sources that are reasonably at its disposal. In this case, when analyzing the petition for purposes of the initiation, the Department reviewed all of the data upon which the petitioners relied in calculating the estimated dumping margins and determined that the margins in the petition were appropriately calculated and supported by adequate evidence in accordance with the statutory requirements for initiation. In order to corroborate the petition margins for purposes of using them as AFA, we re-examined the price and cost information provided in the petition in light of information developed during the investigation. For further details,
In accordance with Section 776(c) of the Act, we were able to partially corroborate the information in the petition using information from independent sources that were reasonably at our disposal. Using this information, we were able to corroborate the price-to-price margin calculations in the petition, but were unable to fully corroborate the constructed value margin calculations in the petition. As a result, we have preliminarily assigned Cogne the highest price-to-price margin rate contained in the petition, 33.00 percent, for purposes of the preliminary determination.
To determine whether sales of SSB from Italy to the United States were made at less than fair value (“LTFV”), we compared the export price (“EP”) or constructed export price (“CEP”) to the normal value (“NV”), as described in the “Export Price” and “Constructed Export Price” and “Normal Value” sections of this notice, below. In accordance with section 777A(d)(1)(A)(i) of the Act, we compared POI weighted-average EPs and CEPs to NVs. Any company-specific changes to the EP, CEP, and NV calculations are discussed in each company's individual calculation memorandum.
In accordance with section 771(16) of the Act, we considered all products produced and sold by the respondents in the home market during the POI that fit the description in the “Scope of Investigation” section of this notice to be foreign like products for purposes of determining appropriate product comparisons to U.S. sales. We compared U.S. sales to sales made in the home market, where appropriate. Where there were no sales of identical merchandise in the home market made in the ordinary course of trade to compare to U.S. sales, we compared U.S. sales to sales of the most similar foreign like product made in the ordinary course of trade. In making the product comparisons, we matched foreign like products based on the physical characteristics reported by the respondents in the following order of importance: General type of finish; grade; remelting process; type of final finishing operation; shape; and size. With respect to grade, we matched products sold in the U.S. and home markets on the basis of the three most similar matches proposed by the respondent, where possible.
On July 11 and 13, 2001, the petitioners submitted general comments on product-matching issues for the Department's consideration in the preliminary determination. These comments were not received in time to be analyzed fully for the preliminary determination, but will be considered for the final determination.
We calculated EP, in accordance with section 772(a) of the Act, for those sales where the merchandise was sold to the first unaffiliated purchaser in the United States prior to importation by the exporter or producer outside the United States, or to an unaffiliated purchaser for exportation to the United States, based on the facts of record. We based EP on the packed duty-not-paid, or delivered price to unaffiliated purchasers in the United States. We identified the correct starting price, where appropriate, by accounting for billing adjustments, freight revenue, and other revenue, as well as by making deductions for early payment discounts and rebates, where applicable. We also made deductions for movement expenses in accordance with section 772(c)(2)(A) of the Act. These included, where appropriate, foreign inland freight (plant to port), foreign brokerage and handling, ocean freight, marine insurance, U.S. inland freight expenses, U.S. inland insurance, other U.S. transportation expenses (including U.S. brokerage and handling), and U.S. customs duties.
We calculated CEP, in accordance with subsection 772(b) of the Act, for those sales to the first unaffiliated purchaser that took place after importation into the United States. We based CEP on the packed FOB, CIF, direct duty paid, or delivered prices to unaffiliated purchasers in the United States. We identified the correct starting price, where appropriate, by accounting for billing adjustments, freight revenue, and other revenue, as well as by making deductions for early payment discounts and rebates, where applicable. We also made deductions for movement expenses in accordance with section 772(c)(2)(A) of the Act. These included, where appropriate, foreign inland freight (plant to port), foreign brokerage and handling, ocean freight, marine insurance, U.S. inland freight expenses (freight from port to warehouse, freight from warehouse to the customer, and freight from warehouse to warehouse), U.S. post-sale warehousing expenses, U.S. inland insurance, other U.S. transportation expenses (including U.S. brokerage and handling), and U.S. customs duties. In accordance with section 772(d)(1) of the Act, we deducted those selling expenses associated with economic activities occurring in the United States, including direct selling expenses
In its June 11, 2001, submission, Bedini indicated that, during the POI, it processed as part of a tolling operation non-subject merchandise (
After further examining Bedini's claim in the context of the Department's substantial transformation practice and tolling regulation (19 CFR 351.401(h)), we concluded that this merchandise must be considered as a product of Italy, but that Bedini, as a tolling operation, cannot be considered the manufacturer or producer. Therefore, we have removed these sales from Bedini's U.S. database. At this time, we are unable to determine whether any of these sales are included in Bedini's home market database, and will examine this issue further after the preliminary determination.
In order to determine whether there is a sufficient volume of sales in the home market to serve as a viable basis for calculating NV (
The Department's standard practice with respect to the use of home market sales to affiliated parties for NV is to determine whether such sales are at arm's-length prices. Therefore, in accordance with that practice, we performed an arm's-length test on Bedini, Valbruna, and Rodacciai's sales to affiliates as follows.
Sales to affiliated customers in the home market not made at arm's-length prices (if any) were excluded from our analysis because we considered them to be outside the ordinary course of trade.
Based on our analysis of an allegation contained in the petition, we found that there were reasonable grounds to believe or suspect that sales of SSB in the home market were made at prices below their cost of production (“COP”). Accordingly, pursuant to section 773(b) of the Act, we initiated a country-wide sales-below-cost investigation to determine whether sales were made at prices below their respective COP (
In accordance with section 773(b)(3) of the Act, we calculated COP based on the sum of the cost of materials and fabrication for the foreign like product, plus an amount for general and administrative expenses (“G&A”), interest expenses, and home market packing costs (
Valbruna. We increased Valbruna's reported total cost of manufacturing to reflect an unreconciled difference between the company's cost accounting system and its reported costs.
Foroni. We adjusted Foroni's general and administrative expenses to include director's fees and exclude indirect selling expenses. We also adjusted Foroni's net financial expenses to exclude foreign exchange gains and losses on accounts receivable, bond interest income and interest income from receivables.
Rodacciai. We adjusted Rodacciai's net financial expenses to exclude foreign exchange gains and losses on accounts receivable and interest income from receivables.
On a product-specific basis, we compared the adjusted weighted-average COP to the home market sales of the foreign like product, as required under section 773(b) of the Act, in order to determine whether the sale prices were below the COP. The prices were inclusive of any applicable freight revenue and exclusive of any applicable movement charges, billing adjustments, discounts, rebates, commissions, interest revenue, warranty expenses, technical service expenses, and direct and indirect selling expenses. In determining whether to disregard home market sales made at prices less than their COP, we examined whether such sales were made (1) within an extended period of time, (2) in substantial
Pursuant to section 773(b)(1), where less than 20 percent of the respondent's sales of a given product are at prices less than the COP, we do not disregard any below-cost sales of that product, because we determine that in such instances the below-cost sales were not made in “substantial quantities.” Where 20 percent or more of a respondent's sales of a given product are at prices less than the COP, we disregard those sales of that product, because we determine that in such instances the below-cost sales represent “substantial quantities” within an extended period of time, in accordance with section 773(b)(1)(A) of the Act. In such cases, we also determine whether such sales were made at prices which would not permit recovery of all costs within a reasonable period of time, in accordance with section 773(b)(1)(B) of the Act.
We found that, for certain specific products, more than 20 percent of Bedini's, Valbruna's, Rodacciai's, and Foroni's home market sales were at prices less than the COP and, in addition, such sales were made within an extended period of time and did not provide for the recovery of costs. We therefore excluded these sales and used the remaining above-cost sales, if any, as the basis for determining NV, in accordance with section 773(b)(1) of the Act.
Section 773(a)(4) of the Act provides that where normal value cannot be based on comparison-market sales, normal value may be based on CV. Accordingly, for Bedini (the only company that had any sales for which NV was based on CV), when sales of comparison products could not be found, either because there were no sales of a comparable product or all sales of the comparable products failed the COP test, we based NV on CV.
In accordance with sections 773(e)(1) and (e)(2)(A) of the Act, we calculated CV based on the sum of the cost of materials and fabrication for the foreign like product, plus amounts for selling expenses, G&A, interest, profit and U.S. packing costs. We calculated the cost of materials and fabrication based on the methodology described in the “Calculation of COP” section of this notice. In accordance with section 773(e)(2)(A) of the Act, we based selling expenses, G&A, and profit on the amounts incurred and realized by Bedini in connection with the production and sale of the foreign like product in the ordinary course of trade for consumption in the foreign country.
Section 773(a)(1)(B)(i) of the Act states that, to the extent practicable, the Department will calculate NV based on sales at the same level of trade (“LOT”) as the EP or CEP. Sales are made at different LOTs if they are made at different marketing stages (or their equivalent) according to 19 CFR 351.412(c)(2). Substantial differences in selling activities are a necessary, but not sufficient, condition for determining that there is a difference in the stages of marketing.
Pursuant to section 773(a)(1)(B)(i) of the Act, in identifying levels of trade for EP and comparison market sales (
When the Department is unable to match U.S. sales to sales of the foreign like product in the comparison market at the same LOT as the EP or CEP, the Department may compare the U.S. sale to sales at a different LOT in the comparison market. If the comparison market sales are at a different LOT, and the difference affects price comparability, as manifested in a pattern of consistent price differences between sales at different LOTs in the country in which NV is determined, we make a level of trade adjustment under section 773(a)(7)(A) of the Act. Finally, for CEP sales only, if a NV LOT is more remote from the factory than the CEP LOT and we are unable to make a level of trade adjustment, the Department shall grant a CEP offset, as provided in section 773(a)(7)(B) of the Act.
We obtained information from each respondent regarding the marketing stages involved in making the reported home market and U.S. sales, including a description of the selling activities performed by the respondents for each channel of distribution. Company-specific level of trade findings are summarized below. The complete level of trade analysis for each company is incorporated into the “Preliminary Determination Calculation Memorandum” for each company.
Bedini. Bedini reported three channels of distribution in the home market, with two customer categories. With respect to the first channel of distribution, coded in its submissions as channel 2, we found that the sales were primarily produced-to-order sales which were shipped to distributors and end-users direct from the factory. Sales to both customer categories were similar with respect to sales process, freight services, warehouse/inventory maintenance and warranty service. We preliminarily determine that this channel of distribution constitutes a distinct LOT (“LOTH1”).
For the remaining two channels in the home market, coded as channels 3 and 4, we found that they were inventory sales by an affiliated reseller, which only differed with respect to the source of the SSB. We have therefore analyzed these reported channels as a single channel of distribution. Within this channel, sales to distributors and end-users were similar with respect to sales process, freight services, warehouse/inventory maintenance and warranty service. We preliminarily determine that this channel constitutes a distinct LOT (“LOTH2”).
We further found that LOTH1 differed significantly from LOTH2 with respect to sales process, freight service and warehouse/inventory maintenance.
In the U.S. market, Bedini only reported CEP sales. Bedini's constructed CEP level of trade was its sales to its affiliated reseller, and since it performed the same selling functions for all of these sales, we found that these CEP sales constitute one level of trade. This CEP level of trade differed considerably from the home market level of trade LOTH2 with respect to sales process, freight services, warehouse/inventory maintenance, and warranty service. We found that LOTH1 was similar to the CEP LOT with respect to sales process, freight services and warehouse/inventory maintenance and differed only slightly with respect to warranty service.
Although Bedini claimed a CEP offset adjustment to normal value, because we found the CEP LOT to be similar to home market level of trade LOTH1, where possible, we matched CEP sales to normal value based on home market sales in LOTH1 and made no CEP offset adjustment. Where we did not match products at the same level of trade, and there was a pattern of consistent price differences between different levels of trade, we made a level of trade adjustment.
Foroni. We examined the chain of distribution and the selling activities associated with sales reported by Foroni in the home market which were primarily produced-to-order sales shipped to distributors and end-users direct from the factory. We found the sales to both customer categories were similar with respect to sales process, freight services, warehouse/inventory maintenance and warranty service. We therefore preliminarily determine that these home market sales constitute a single level of trade.
In the U.S. market, Foroni only reported CEP sales. Foroni's constructed CEP level of trade was its sales to its affiliated reseller, and since it performed the same selling functions for these sales, we found that these CEP sales constitute one level of trade. This CEP level of trade was similar to that of the home market with respect to sales process, warehouse/inventory maintenance and warranty service, and differed only slightly with respect to freight and delivery. Since we found the CEP LOT to be similar to the home market level of trade, we matched CEP sales to normal value based on home market sales and made no CEP offset adjustment.
Rodacciai. We examined the chain of distribution and the selling activities associated with home market sales reported by Rodacciai from warehouse inventory to end-users and to distributors. We found that sales to each customer category were similar with respect to sales process, freight services, warehouse/inventory maintenance and warranty service and therefore Rodacciai's home market sales constituted a single level of trade.
In the U.S. market, Rodacciai had both EP and CEP sales. Rodacciai reported EP sales to distributors through only one channel of distribution and one customer category, and therefore had only one level of trade for its EP sales. This EP level of trade differed considerably from the home market level of trade with respect to sales process, freight services and warehousing/inventory maintenance. Consequently, we could not match the EP level of trade to sales at the same level of trade in the home market. Since there was only one level of trade in the home market, there was no pattern of consistent price differences between different levels of trade in the home market, nor do we have any other information that provides an appropriate basis for determining a level of trade adjustment. Accordingly, we have not made a level of trade adjustment.
With respect to CEP sales, Rodacciai's constructed CEP level of trade was sales to its affiliated reseller, and since it performed the same selling functions for these sales, we found that these CEP sales constitute one level of trade. This CEP level of trade differed considerably from the single home market level of trade with respect to sales process, freight services and warehouse/inventory maintenance. Consequently, we could not match to sales at the same level of trade in the home market. Since there was only one level of trade in the home market, there was no pattern of consistent price differences between different levels of trade in the home market, nor do we have any other information that provides an appropriate basis for determining a level of trade adjustment. Accordingly, we have not made a level of trade adjustment.
Valbruna. Valbruna reported two channels of distribution in the home market, with two customer categories. The first channel of distribution, coded in its submissions as channel 1, included sales made to end-users and distributors by factory headquarters. Sales to both customer categories in this channel were similar with respect to sales process, freight services, warehouse/inventory maintenance and warranty service. The second channel of distribution, coded in its submissions as channel 2, were sales made to end-users and distributors by service centers. We compared these two channels of distribution and found that, while they differed slightly with respect to warehouse/inventory maintenance, they were similar with respect to sales process, freight services and warranty service. Accordingly, we preliminarily determine that home market sales in these two channels of distribution constitute a single level of trade.
In the U.S. market, Valbruna had both EP and CEP sales. Valbruna reported EP sales to a master distributor through only one channel of distribution and one customer category, and therefore had only one level of trade for its EP sales. This EP level of trade differed considerably from the home market level of trade with respect to sales process and warehousing/inventory maintenance. Consequently, we could not match the EP level of trade to sales at the same level of trade in the home market. Since there was only one level of trade in the home market, there was no pattern of consistent price differences between different levels of trade in the home market, nor do we have any other information that provides an appropriate basis for determining a level of trade adjustment. Accordingly, we have not made a level of trade adjustment.
With respect to CEP sales, Valbruna's constructed CEP level of trade was sales to its affiliated reseller, and since it performed the same selling functions for these sales, we found that these CEP sales constitute one level of trade. This CEP level of trade differed considerably from the single home market level of trade with respect to sales process and warehouse/inventory maintenance. Consequently, we could not match to sales at the same level of trade in the home market. Since there was only one level of trade in the home market, there
We calculated NV based on delivered, FOB, or ex-works/ex-warehouse prices to unaffiliated customers or prices to affiliated customers that we determined to be at arm's-length. To identify the correct starting price, we accounted for freight revenue, where appropriate, and also made deductions, where appropriate, for billing adjustments, early payment discounts, and other discounts and rebates. We also made adjustments for inland freight (plant to warehouse and plant/warehouse to customer), and warehousing expense, where appropriate, in accordance with section 773(a)(6)(B)(iii) of the Act. We made adjustments for differences in costs attributable to differences in the physical characteristics of the merchandise in accordance with section 773(a)(6)(C)(ii) of the Act and 19 CFR 351.411. In addition, where appropriate, we made adjustments under section 773(a)(6)(C)(iii) of the Act for differences in circumstances of sale for commissions, imputed credit expenses, interest revenue, warranty expenses, technical service expenses, and other direct selling expenses. We also made adjustments, in accordance with 19 CFR 351.410(e), for indirect selling expenses incurred in the comparison market or U.S. sales where commissions were granted on sales in one market but not in the other (the commission offset). We deducted home market packing costs and added U.S. packing costs in accordance with section 773(a)(6)(A) and (B) of the Act.
Finally, where appropriate, we made an adjustment for differences in LOT under section 773(a)(7)(A) of the Act and 19 CFR 351.412(b)-(e). Additionally, for certain comparisons to CEP sales, where appropriate, we deducted from normal value the lesser of comparison-market indirect selling expenses and indirect selling expenses deducted from CEP (the CEP offset), pursuant to section 773(a)(7)(B) of the Act and 19 CFR 351.412(f).
For price-to-CV comparisons, we made adjustments to CV in accordance with section 773(a)(8) of the Act. Where we compared CV to CEP, we deducted from CV the weighted-average home market direct selling expenses. We also made circumstances of sale adjustments. Finally, we made an adjustment for differences in LOT under section 773(a)(7)(A) of the Act and 19 CFR 351.412(b)-(e).
We made currency conversions into U.S. dollars in accordance with section 773A(a) of the Act based on the exchange rates in effect on the dates of the U.S. sales as reported by the Dow Jones.
As provided in section 782(i) of the Act, we will verify all information relied upon in making our final determination.
In accordance with section 733(d)(2) of the Act, with the exception of Valbruna, noted below, we are directing the Customs Service to suspend liquidation of all imports of subject merchandise that are entered, or withdrawn from warehouse, for consumption on or after the date of publication of this notice in the
For Valbruna, because its estimated weighted-average preliminary dumping margin is
In accordance with section 733(f) of the Act, we have notified the ITC of our determination. If our final determination is affirmative, the ITC will determine before the later of 120 days after the date of this preliminary determination or 45 days after our final determination whether these imports are materially injuring, or threaten material injury to, the U.S. industry.
We will disclose the calculations used in our analysis to parties in this proceeding in accordance with 19 CFR 351.224(b).
Case briefs for this investigation must be submitted to the Department no later than November 5, 2001. Rebuttal briefs must be filed by November 13, 2001. A list of authorities used, a table of contents, and an executive summary of issues should accompany any briefs submitted to the Department. Executive summaries should be limited to five pages total, including footnotes. Section 774 of the Act provides that the Department will hold a public hearing to afford interested parties an opportunity to comment on arguments raised in case or rebuttal briefs, provided that such a hearing is requested by an interested party. If a request for a hearing is made in this investigation, the hearing will tentatively be held on November 16, 2001 at the U.S. Department of Commerce, 14th Street and Constitution Avenue, N.W., Washington, D.C. 20230. Parties should confirm by telephone the time, date, and place of the hearing 48 hours before the scheduled time.
Interested parties who wish to request a hearing, or to participate if one is requested, must submit a written request to the Assistant Secretary for Import Administration, U.S. Department of Commerce, Room 1870, within 30 days of the publication of this notice. Requests should contain: (1) The party's name, address, and telephone number; (2) the number of participants; and (3) a list of the issues to be discussed. Oral presentations will be limited to issues raised in the briefs.
If this investigation proceeds normally, we will make our final determination by no later than 135 days after the publication of this notice in the
This determination is published pursuant to sections 733(f) and 777(i) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
Notice of preliminary determination of sales at less than fair value.
We preliminarily determine that stainless steel bar from Korea is being, or is likely to be, sold in the United States at less than fair value, as provided in section 733(b) of the Tariff Act of 1930, as amended.
Interested parties are invited to comment on this preliminary determination. Since we are postponing the final determination, we will make our final determination not later than 135 days after the date of publication of this preliminary determination in the
August 2, 2001.
Barbara Wojcik-Betancourt or Sophie Castro, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone: (202) 482-0629 or (202) 482-0588, respectively.
Unless otherwise indicated, all citations to the Tariff Act of 1930, as amended (“the Act”), are references to the provisions effective January 1, 1995, the effective date of the amendments made to the Act by the Uruguay Round Agreements Act (“URAA”). In addition, unless otherwise indicated, all citations to the Department of Commerce (“Department's”) regulations are to the regulations at 19 CFR part 351 (April 2000).
Since the initiation of this investigation (
On January 26, 2001, we solicited comments from interested parties regarding the criteria to be used for model-matching purposes, and we received comments on our proposed matching criteria on February 8, 2001.
On February 12, 2001, the United States International Trade Commission (“ITC”) preliminarily determined that there is a reasonable indication that imports of stainless steel bar (“SSB”) from Korea are materially injuring the United States industry (
On February 12, 2001, we selected the four largest producers/exporters of SSB from Korea as the mandatory respondents in this proceeding. For further discussion,
On February 15, 2001, SeAH Steel Corp. (“SeAH”) appeared on the record of this investigation as a voluntary respondent. On April 23, 2001, SeAH was advised that the Department could not change its status from a voluntary to a mandatory respondent. (See Memoranda to the File dated February 27, 2001, and April 30, 2001, for further discussion.)
In February and March, 2001, the petitioners
On March 13, 2001, Duferco, a trading company in Switzerland, requested that it be relieved from its requirement to respond to Sections B, C, and D of the antidumping questionnaire because the producer of the subject merchandise that Duferco sold to the United States during the POI, indicated that it intended to report all the relevant sales and cost data in its response to the antidumping questionnaire because it knew at the time of sale to Duferco that the subject merchandise would be exported to the United States. On April 12, 2001, the Department informed Duferco that it was not required to respond to Sections B, C, and D of the antidumping questionnaire. The Department also advised Duferco that pursuant to section 776(a) of the Tariff Act of 1930, as amended, if the information provided by Duferco or Duferco's supplier is not complete or cannot be verified as provided in section 782(i) of the Act, the Department may have to resort to the use of facts available. (
During the period March through June 2001, the Department received responses to Sections A, B, C, and D of
On April 27, 2001, pursuant to 19 CFR 351.205(e), the petitioners made a timely request to postpone the preliminary determination. We granted this request on May 7, 2001, and postponed the preliminary determination until no later than July 26, 2001. (
On July 10 and 11, 2001, the petitioners submitted comments with respect to Dongbang's and Changwon's Sections A-D original and supplemental questionnaire responses.
Pursuant to section 735(a)(2) of the Act, on May 23, 2001, Changwon and Dongbang requested that, in the event of an affirmative preliminary determination in this investigation, the Department postpone its final determination until not later than 135 days after the date of the publication of the preliminary determination in the
For purposes of this investigation, the term “stainless steel bar” includes articles of stainless steel in straight lengths that have been either hot-rolled, forged, turned, cold-drawn, cold-rolled or otherwise cold-finished, or ground, having a uniform solid cross section along their whole length in the shape of circles, segments of circles, ovals, rectangles (including squares), triangles, hexagons, octagons, or other convex polygons. Stainless steel bar includes cold-finished stainless steel bars that are turned or ground in straight lengths, whether produced from hot-rolled bar or from straightened and cut rod or wire, and reinforcing bars that have indentations, ribs, grooves, or other deformations produced during the rolling process.
Except as specified above, the term does not include stainless steel semi-finished products, cut length flat-rolled products (
The stainless steel bar subject to this investigation is currently classifiable under subheadings 7222.11.00.05, 7222.11.00.50, 7222.19.00.05, 7222.19.00.50, 7222.20.00.05, 7222.20.00.45, 7222.20.00.75, and 7222.30.00.00 of the
In accordance with our regulations, we set aside a period of time for parties to raise issues regarding product coverage and encouraged all parties to submit comments within 20 calendar days of publication of the
• Stainless steel tool steel
• Welding wire
• Special-quality oil field equipment steel (SQOFES)
• Special profile wire
We have addressed these requests in a Memorandum to Susan Kuhbach and Louis Apple from The Stainless Steel Bar Team, dated July 26, 2001, entitled “Scope Exclusion Requests,” and a Memorandum to Louis Apple from The Stainless Steel Bar Team, dated July 26, 2001, entitled “Whether Special Profile Wire Product is Included in the Scope of the Investigation.” Our conclusions are summarized below.
Regarding stainless steel tool steel, welding wire, and SQOFES, after considering the respondents' comments and the petitioners' objections to the exclusion requests, we preliminarily determine that the scope is not overly broad. Therefore, stainless steel tool steel, welding wire, and SQOFES are within the scope of these SSB investigations. In addition, we preliminarily determine that SQOFES does not constitute a separate class or kind of merchandise from SSB.
Regarding special profile wire, we have preliminarily determined that this product does not fall within the scope as it is written because its cross section is in the shape of a concave polygon. Therefore, we have not included special profile wire in these investigations.
Finally, we note that in the concurrent countervailing duty investigation of stainless steel bar from Italy, the Department preliminarily determined that hot-rolled stainless steel bar is within the scope of these investigations. (
The POI is October 1, 1999, through September 30, 2000.
To determine whether sales of SSB from Korea to the United States were made at less than fair value (“LTFV”), we compared the export price (“EP”) or constructed export price (“CEP”) to the Normal Value (“NV”), as described in the “Export Price” and “Constructed Export Price” and “Normal Value” sections of this notice, below. In accordance with section 777A(d)(1)(A)(i) of the Act, we compared POI weighted-average EPs and CEPs to NVs.
In accordance with section 771(16) of the Act, we considered all products produced and sold by the respondents in the home market during the POI that fit the description in the “Scope of Investigation” section of this notice to be foreign like products for purposes of determining appropriate product comparisons to U.S. sales. We compared U.S. sales to sales made in the home market, where appropriate. Where there were no sales of identical merchandise in the home market made in the ordinary course of trade to compare to U.S. sales, we compared U.S. sales to
With respect to general type of finish, the Department's questionnaire recognizes two types: hot-finished and cold-finished. Changwon reported a third type of finishing category (
With respect to grade, we matched products sold in the U.S. and home markets on the basis of the three most similar matches proposed by the respondents, where possible.
With respect to “Round-Class II” products sold by Dongbang during the POI, in its original questionnaire response, Dongbang classified these products separately from round products in its reported shape code. In its June 11, 2001 supplemental questionnaire response, Dongbang reported Round-Class II products as a different grade rather than a separate shape, without providing the Department with a sufficient explanation as to why Class II products should be recognized as a different grade. Although Dongbang explained that Class II products undergo a more lengthy and more costly production process than non-Class II products, and provided the mechanical requirements of a Class II product as detailed in the ASTM specifications, the respondent did not show how a Class II product would constitute a separate grade with respect to chemical composition. Therefore, we have not taken into account the additional coding for Class II products in our preliminary determination and will review this issue further for the final determination.
On July 10 and 13, 2001, the petitioners submitted general comments on product matching issues for the Department's consideration in the preliminary determination. These comments were not received in time to be fully analyzed for the preliminary determination but will be considered for the final determination.
With respect to home market sales of non-prime SSB made by Changwon and Dongbang during the POI, in accordance with our past practice, we excluded these sales from our preliminary analysis based on the limited quantity of such sales in the home market and the fact that no such sales were made to the United States during the POI. (
Changwon reported all U.S. sales as EP sales. During the POI, Changwon sold subject merchandise to unaffiliated U.S. customers prior to importation through affiliated (
With respect to sales made through Changwon's affiliated Korean trading company POSTEEL and through POSTEEL's affiliated U.S. trading company, POSAM, prior to importation, Changwon claims that these sales are properly classified as EP sales because Changwon is not directly affiliated with the U.S. trading company, POSAM. Furthermore, Changwon claims that the U.S. trading company acts only as a sales-document processor and communication link to facilitate Changwon's U.S. sales to unaffiliated customers.
We preliminarily determine that sales made through POSTEEL's U.S. affiliate and reported by Changown as EP sales are properly classified as CEP sales. Having reviewed the evidence on the record of this investigation regarding respondent's reported EP sales, we conclude that sales between the foreign producer (
We calculated CEP, in accordance with subsection 772(b) of the Act, for those sales to the first unaffiliated purchaser that took place in the United States prior to importation by a seller affiliated with the producer or exporter as discussed above. We based CEP on the packed FOB or delivered prices to unaffiliated purchasers in the United States. We added duty drawback in accordance with section 772(c)(1)(B) of the Act. We made deductions for movement expenses in accordance with section 772(c)(2)(A) of the Act; these included, where appropriate, ocean freight, marine insurance, U.S. brokerage and handling, U.S. customs duties (including harbor maintenance fees and merchandise processing fees), U.S. inland insurance, and U.S. inland freight expenses (freight from port to warehouse and freight from warehouse to the customer). In accordance with section 772(d)(1) of the Act, we deducted those selling expenses associated with economic activities occurring in the United States, including direct selling expenses (credit costs and warranty expenses), inventory carrying costs, and indirect selling expenses. We also made an adjustment for profit in accordance with section 772(d)(3) of the Act. (
We calculated EP, in accordance with section 772(a) of the Act, for those sales where the merchandise was sold to the first unaffiliated purchaser in the United States prior to importation by the exporter or producer outside the United States, or to an unaffiliated purchasers in the home market for exportation to
For all of Dongbang's reported sales, we calculated EP, in accordance with section 772(a) of the Act, for those sales where the merchandise was sold to the first unaffiliated purchaser in the United States prior to importation by the exporter or producer outside the United States, or to an unaffiliated purchaser in the home market for exportation to the United States market, based on the facts of record. We based EP on the packed delivered price to unaffiliated purchasers in the United States and home market. We added duty drawback in accordance with section 772(c)(1)(B) of the Act. We made deductions for movement expenses in accordance with section 772(c)(2)(A) of the Act; these included, where appropriate, domestic inland freight, Korean brokerage and handling charges (including wharfage charges, terminal handling charges, inspection fees, document fees, CFS charges, container taxes and customs clearance fees), ocean freight and marine insurance. (
In order to determine whether there is a sufficient volume of sales in the home market to serve as a viable basis for calculating NV (
Based on our analysis of an allegation contained in the petition, we found that there were reasonable grounds to believe or suspect that sales of SSB in the home market were made at prices below their cost of production (“COP”). Accordingly, pursuant to section 773(b) of the Act, we initiated a country-wide sales-below-cost investigation to determine whether sales were made at prices below their respective COP (
In accordance with section 773(b)(3) of the Act, we calculated COP based on the sum of the cost of materials and fabrication for the foreign like product, plus an amount for general and administrative expenses (“G&A”), interest expenses, and home market packing costs (see “Test of Home Market Sales Prices” section below for treatment of home market selling expenses). We relied on the COP data submitted by Changwon and Dongbang, except where noted below:
We revised Changwon's fiscal year 2000 G&A expense rate calculation to exclude foreign exchange gains which were already reflected in the interest expense rate calculation. We used the revised interest expense rate which was submitted based on Changwon's consolidated parent company's 2000 financial statements. The COP file reflected the rate based on the 1999 financial statements.
We revised Dongbang's reported direct materials costs to reflect market prices in accordance with section 773(f)(3) of the Act. The record evidence shows that market price exceeds both the transfer price of the direct materials purchased from the affiliated supplier and the affiliated supplier's COP. Accordingly, we have increased Dongbang's reported direct material costs to reflect the difference between the market price and the transfer price or COP.
On a product-specific basis, we compared the adjusted weighted-average COP to the home market sales of the foreign like product, as required under section 773(b) of the Act, in order to determine whether the sale prices were below the COP. The prices were exclusive of any applicable movement charges and direct and indirect selling expenses. In determining whether to disregard home market sales made at prices less than their COP, we examined, in accordance with sections 773(b)(1)(A) and (B) of the Act, whether such sales were made (1) within an extended period of time, (2) in substantial quantities, and (3) at prices which did not permit the recovery of all costs within a reasonable period of time.
Pursuant to section 773(b)(1) of the Act, where less than 20 percent of the respondent's sales of a given product are at prices less than the COP, we do not disregard any below-cost sales of that product, because we determine that in such instances the below-cost sales were not made in “substantial quantities.” Where 20 percent or more of a respondent's sales of a given product are at prices less than the COP, we disregard those sales of that product, because we determine that in such instances the below-cost sales represent “substantial quantities” within an extended period of time, in accordance with section 773(b)(1)(A) of the Act. In such cases, we also determine whether such sales were made at prices which
Section 773(a)(1)(B)(i) of the Act states that, to the extent practicable, the Department will calculate NV based on sales in the comparison market at the same level of trade (“LOT”) as the EP or CEP transaction. Sales are made at different LOTs if they are made at different marketing stages (or their equivalent). 19 CFR 351.412(c)(2). Substantial differences in selling activities are a necessary, but not sufficient, condition for determining that there is a difference in the stages of marketing.
Pursuant to section 773(a)(1)(B)(i) of the Act, in identifying levels of trade for EP and comparison market sales (
When the Department is unable to match U.S. sales to sales of the foreign like product in the comparison market at the same LOT as the EP or CEP, the Department may compare the U.S. sale to sales at a different LOT in the comparison market. In comparing EP or CEP sales at a different LOT in the comparison market, where available data make it practicable, we make a LOT adjustment under section 773(a)(7)(A) of the Act. Finally, for CEP sales only, if a NV LOT is more remote from the factory than the CEP LOT and we are unable to make a LOT adjustment, the Department shall grant a CEP offset, as provided in section 773(a)(7)(B) of the Act.
We obtained information from each respondent regarding the marketing stages involved in making the reported home market and U.S. sales, including a description of the selling activities performed by the respondents for each channel of distribution. Company-specific LOT findings are summarized below.
In the U.S. market, Changwon made both EP and CEP sales.
Changwon's CEP sales were also made through one channel of distribution and to one category of customer,
We then compared the chain of distribution and selling activities associated with the home market LOT with that of the EP/CEP LOT and found that the chain of distribution and selling activities associated with EP/CEP LOT were the same as those associated with
In the home market, Dongbang reported two customer categories (
In the U.S. market, Dongbang reported it sold to one category of customer (
We also examined Dongbang's submitted data to determine whether the U.S. sales were made at the same LOT as that found in the home market. Specifically, Dongbang primarily provides freight services. It does not provide technical advice, after-sale warehousing, advertising, or quality assurance for any of its U.S. or home market sales. Further, all Dongbang's U.S. and home market sales of SSB were made through direct shipments from its factory to its customers. Therefore, no LOT adjustment is warranted.
Changwon. We calculated NV based on delivered prices, where applicable, to unaffiliated customers in the home market. We made deductions for inland freight under section 773(a)(6)(B)(ii) of the Act. We made adjustments to normal value, for differences in costs attributable to differences in the physical characteristics of the merchandise in accordance with section 773(a)(6)(C)(ii) of the Act and 19 CFR 351.411. In addition, we made adjustments under section 773(a)(6)(C)(iii) of the Act and 19 CFR 351.410 for differences in circumstances of sale for imputed credit expenses and warranty expenses. We also deducted home market packing costs and added U.S. packing costs in accordance with sections 773(a)(6)(A) and (B) of the Act.
Dongbang paid commissions to unaffiliated sales intermediaries on some U.S. sales of subject merchandise but did not pay commissions on its home market sales. Therefore, in accordance with 19 CFR 351.410(e), we offset the commission incurred in the U.S. market, with indirect selling expenses incurred in the home market to the extent of the lesser of the commission or the indirect selling expenses. As indirect selling expenses, we used both Dongbang's reported home market inventory carrying costs and indirect selling expenses. We also deducted home market packing costs and added U.S. packing costs in accordance with sections 773(a)(6)(A) and (B) of the Act.
We made currency conversions into U.S. dollars in accordance with section 773A(a) of the Act based on the exchange rates in effect on the dates of the U.S. sales as certified by the Federal Reserve Bank.
As provided in section 782(i) of the Act, we will verify all information relied upon in making our final determination.
In accordance with section 733(d)(2) of the Act, we are directing the Customs Service to suspend liquidation of all imports of subject merchandise that are entered, or withdrawn from warehouse, for consumption on or after the date of publication of this notice in the
In accordance with section 733(f) of the Act, we have notified the ITC of our determination. If our final determination is affirmative, the ITC will determine before the later of 120 days after the date of this preliminary determination or 45 days after our final determination whether these imports are materially injuring, or threaten material injury to, the U.S. industry.
We will disclose the calculations used in our analysis to parties in this proceeding in accordance with 19 CFR 351.224(b).
Case briefs for this investigation must be submitted to the Department no later
Interested parties who wish to request a hearing, or to participate if one is requested, must submit a written request to the Assistant Secretary for Import Administration, U.S. Department of Commerce, Room 1870, within 30 days of the publication of this notice. Requests should contain: (1) The party's name, address, and telephone number; (2) the number of participants; and (3) a list of the issues to be discussed. Oral presentations will be limited to issues raised in the briefs.
If this investigation proceeds normally, we will make our final determination by no later than 135 days after the publication of this notice in the
This determination is published pursuant to sections 733(f) and 777(i) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
Notice of amendment to initiation of countervailing duty investigation.
The Department of Commerce (the Department) is amending its notice of initiation of a countervailing duty investigation of certain softwood lumber products from Canada to exempt the Provinces of New Brunswick, Nova Scotia, Prince Edward Island, and Newfoundland (the Maritime Provinces) from the investigation. This exemption does not apply to certain softwood lumber products produced in the Maritime Provinces from Crown timber harvested in any other Province.
August 2, 2001.
Eric B. Greynolds at (202) 482-6071 or Maria MacKay at (202) 482-1775, Office of AD/CVD Enforcement VI, Group II, Import Administration, International Trade Administration, U.S. Department of Commerce, Room 1870, 14th Street and Constitution Avenue, N.W., Washington, D.C. 20230.
Unless otherwise indicated, all citations to the statute are references to the provisions effective January 1, 1995, the effective date of the amendments made to the Tariff Act of 1930 (the Act) by the Uruguay Round Agreements Act (URAA). In addition, unless otherwise indicated, all citations to the Department's regulations are references to the provisions codified at 19 CFR Part 351 (2001).
On April 30, 2001, the Department published in the
In the comments submitted to the Department, parties argued that, consistent with the petition, the Department should have exempted certain lumber produced in the Maritime Provinces from the scope of the investigation. Specifically, petitioners asserted that the Department should have exempted the Maritime Provinces from the investigation. In a subsequent submission, petitioners requested that the Department amend the Notice of Initiation to exempt the Maritime Provinces from the investigation. The Maritime Provinces, the Maritime Lumber Bureau of Canada, and at least one company located in the Maritime Provinces also requested that the Department reconsider its decision to include the Maritime Provinces in the investigation. Additionally, the Government of Canada, in pre-initiation consultations with the Department, supported exempting the Maritime Provinces from the investigation.
We have reconsidered the status of the Maritime Provinces in this investigation. Based on all of the comments submitted, we agree with the views expressed by the interested parties that, given the unique circumstances associated with the investigation of softwood lumber from Canada, as described below, the Department should exempt certain lumber produced in the Maritime Provinces from the scope of the investigation. In reaching this decision, we were guided by the long history of trade cases and trade agreements regarding softwood lumber.
The courts have long recognized that, generally, the statute accords the Department broad discretion in the enforcement of the antidumping and countervailing duty laws.
Upon reconsideration, we have concluded that, even though the exact circumstances surrounding the exemption of the Maritimes from the 1991 investigation are not present in this case, there are still unique
The Notice of Initiation is amended to add the following paragraph entitled “Exemption of Maritime Provinces”:
The lumber dispute between Canada and the United States has a long history. Throughout much of the history of this dispute, the Maritime Provinces have been exempt from the various actions taken, including the 1986 Memorandum of Understanding on Softwood Lumber, the interim measures taken pursuant to Section 301 of the Trade Act of 1974, the 1991 countervailing duty investigation, and the recently expired Softwood Lumber Agreement. All parties have generally recognized that there are unique circumstances associated with the Maritime Provinces and have supported those exemptions. That is equally true in the case now before us. In the petition, petitioners requested that softwood lumber production in the Maritime Provinces be exempt as it was in the 1991 countervailing duty investigation. Further, petitioners did not allege that any subsidies are received by producers in the Maritime Provinces. While the absence of allegations regarding specific regions of a country would not be sufficient by itself to warrant the exemption of those regions from an investigation, this factor, when combined with all the other unique circumstances of the Maritimes, does contribute to our determination to exempt the Maritimes. The Government of Canada also supported exemption of the Maritime Provinces from the investigation given the absence of subsidy allegations.
In light of all of the unique circumstances in this case, we have determined that it is appropriate to exempt exports of certain softwood lumber products produced in the Maritime Provinces from this investigation. As in the earlier proceedings and agreements concerning softwood lumber, this exemption does not apply to certain softwood lumber products produced in the Maritime Provinces from Crown timber harvested in any other Province.
National Oceanic and Atmospheric Administration (NOAA).
Proposed information collection; comment request.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Pub. L. 104-13 (44 U.S.C. 3506 (c)(2)(A)).
Written comments must be submitted on or before October 1, 2001.
Direct all written comments to Madeleine Clayton, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6086, 14th and Constitution Avenue NW, Washington DC 20230 (or via Internet at MClayton@doc.gov).
Requests for additional information or copies of the information collection instrument(s) and instructions should be directed to Ellie Francisco Roche, F/SERX2, Room 201, 9721 Executive Center Drive North, St. Petersburg, FL 33702-2439 (phone 727-570-5324).
MARFIN is a competitive Federal assistance program that makes funds available to assist persons in carrying out research and development projects that will help to optimize the use of a U.S. Gulf of Mexico fishery involving the U.S. commercial or recreational fishermen. Examples of topics are harvesting methods, economic analyses, processing methods, fish stock assessment, and fish stock enhancement. A person seeking assistance must submit an application. Successful applicants must submit semi-annual and final reports.
A MARFIN-specific project summary and budget form is used. All other requirements follow standard Federal grant application procedures and forms. Paper documentation is used.
Comments are invited on: (a) whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency’s estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and/or
National Oceanic and Atmospheric Administration (NOAA).
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)).
Written comments must be submitted on or before October 1, 2001.
Direct all written comments to Madeleine Clayton, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6086, 14th and Constitution Avenue NW, Washington DC 20230 (or via the Internet at MClayton@doc.gov).
Requests for additional information or copies of the information collection instrument(s) and instructions should be directed to Mark R. Millikin, F/SF3, Room 13357, 1315 East-West Highway, Silver Spring, MD 20910-3282 (phone 301-713-2341, ext. 53).
Under provisions of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. et seq) as amended by the Sustainable Fisheries Act (P.L. 104-297), the Secretary of Commerce is required to publish a list of all fisheries under the authority of each Fishery Management Council and of all fishing gear to be used in such fisheries. Such a list has been published. Any person wishing to use gear not on the list, or engage in a fishery not on the list, must provide the appropriate Fishery Management Council (or in some cases the Secretary) with 90 days advance written notice. If the Secretary takes no action to prohibit such a fishery or use of such gear, the person may proceed.
The respondent provides written notice. No form is used.
Comments are invited on: (a) whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency’s estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
National Oceanic and Atmospheric Administration (NOAA).
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506 (c)(2)(A)).
Written comments must be submitted on or before October 1, 2001.
Direct all written comments to Madeleine Clayton, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6086, 14th and Constitution Avenue NW, Washington DC 20230 (or via Internet at MClayton@doc.gov).
Requests for additional information or copies of the information collection instrument(s) and instructions should be directed to Myles Raizin, National Marine Fisheries Service, 1 Blackburn Drive, Gloucester, MA 01930 (phone 978-281-9104).
The surf clam/ocean quahog fishery is managed under an individual transferable quota system that sets both individual and overall harvest goals. In order to aid in the enforcement of these quotas, fishermen are generally required to land unshucked surf clams and ocean quahogs in 32-bushel cages. Because of potential pollution problems with this practice, fishermen can shuck at sea if they obtain an authorization to do so from NOAA. NOAA will only authorize the action if a NOAA-approved observer is carried on the vessel to certify the amount of unshucked shellfish harvested. This is required because of the difficulty in converted shucked weights into bushels.
A paper form is submitted.
Comments are invited on: (a) whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency’s estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
National Oceanic and Atmospheric Administration (NOAA).
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law. 104-13 (44 U.S.C. 3506 (c)(2)(A)).
Written comments must be submitted on or before October 1, 2001.
Direct all written comments to Madeleine Clayton, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6086, 14th and Constitution Avenue NW, Washington DC 20230 (or via Internet at MClayton@doc.gov).
Requests for additional information or copies of the information collection instrument(s) and instructions should be directed to Richard Surdi, F/SF5, RM: 13142, 1315 East-West Highway, Silver Spring MD 20910-3282 (phone 301-713-2337, ext. 169).
The Magnuson-Stevens Fishery Conservation and Management Act authorizes the establishment of Regional Fishery Management Councils to exercise sound judgment in the stewardship of fishery resources through the preparation, monitoring, and revision of such plans under circumstances (a) which will enable the States, the fishing industry, consumer and environmental organizations, and other interested persons to participate in, and advise on, the establishment and administration of such plans, and (b) which take into account the social and economic needs of the States. Section 302(j) of the Act requires that Council members appointed in accordance with Section 302 (b)(2) and Section 302 (b)(5) who are not subject to disclosure and recusal laws of an Indian Tribal Government disclose their financial interests in any Council fishery. These interests include harvesting, processing, or marketing activity that is being, or will be, undertaken within any fishery over which the Council concerned has jurisdiction.
A member required to disclose a financial interest shall not vote on a Council decision which would have a significant and predictable effect on such financial interest. A Council decision shall be considered to have a significant and predictable effect on a financial interest if there is a close causal link between the Council decision and an expected and substantially disproportionate benefit to the financial interest of the affected individual relative to the financial interest of other participants in the same gear type or sector of the fishery. An affected individual who may not vote may participate in Council deliberations relating to the decision after notifying the Council of the voting recusal and identifying the financial interest that would be affected.
Respondents submit paper forms. With the exception of the Tribal Government nominees, Council nominees for appointment must provide and file a financial interest form as prescribed by the Secretary prior to the date of appointment. Seated Council members appointed by the Secretary, including the Tribal Government appointees, must file a financial interest form within 45 days of taking office and must file an update of their statements within 30 days of the time any such financial interest is acquired or substantially changed.
Comments are invited on: (a) whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency’s estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
National Oceanic and Atmospheric Administration (NOAA).
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506 (c)(2)(A)).
Written comments must be submitted on or before October 1, 2001.
Direct all written comments to Madeleine Clayton, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6086, 14th and Constitution Avenue NW, Washington DC 20230 (or via Internet at MClayton@doc.gov).
Requests for additional information or copies of the information collection instrument(s) and instructions should be directed to Lamont Jackson, F/PR3 Room 13632, 1315 East-West Highway, Silver Spring MD 20910-3282 (phone 301-713-1401, ext. 150).
The Endangered Species Act of 1973 (ESA; 16 U.S.C. 1531
The regulations contain three sets of information collections: (l) applications for incidental take permits, (2) applications for certificates of inclusion, and (3) reporting requirements for permits issued. Certificates of inclusion are only required if a general permit is issued to a representative of a group of potential permit applicants, rather than requiring each entity to apply for and receive a permit. There are currently no general incidental take permits, and no certificates of inclusion, and none are expected in the next 3 years.
The required information is used to evaluate the impacts of the proposed activity on endangered species, to make the determinations required by the ESA prior to issuing a permit, and to establish appropriate permit conditions.
When a species is listed as threatened, section 4(d) of the ESA requires the Secretary to issue whatever regulations are deemed necessary or advisable to provide for conservation of the species. In many cases those regulations reflect blanket application of the section 9 take prohibition. However, in an interim rule for protection of listed coho salmon, NMFS recognized certain exceptions to that prohibition, including one for restoration actions taken in accord with approved watershed action plans in Oregon or California. While watershed plans are prepared for other purposes in coordination with or fulfillment of various state programs, a watershed group wishing to take advantage of the exception for restoration activities (rather than obtaining a section 10 permit) would have to submit the plan for NMFS review.
Permit or certificate applicants must submit an application to NMFS, including all appropriate information listed on the instructions. These instructions are a user-friendly version of the requirements at 50 CFR 222.22 (b) for applications for incidental take permits.
Once issued, the permit requires that permit holders submit an annual report on activities. These reports must include information on: the activity causing incidental take, any endangered species taken (species, dates, location, and condition of animal), and the status of implementing a conservation plan to offset the impact to the species.
For watershed plans, a watershed council or other local group would submit its watershed plan to NMFS (and the state) for review against state guidance which meets the standards of 50 CFR 222.22 (c). If the plan is found consistent with the state guidance, the group would not need to apply for a section 10 permit for any incidental take that might be associated with a restoration action called for in the plan. No annual or other reporting is associated with the restoration activity exception.
Comments are invited on: (a) whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency’s estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506 (c)(2)(A)).
Written comments must be submitted on or before October 1, 2001.
Direct all written comments to Madeleine Clayton, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6086, 14th and Constitution Avenue NW, Washington DC 20230 (or via the Internet at MClayton@doc.gov).
Requests for additional information or copies of the information collection instrument(s) and instructions should be directed to Bob Dickinson, F/SF4, Room 13304, 1315 East-West Highway, Silver Spring MD 20910-3282 (phone 301-713-2276, ext. 154).
Regulations at 50 CFR Part 300, Subpart J, govern U.S. fishing in the economic zone of the Russian Federation. Russian authorities may permit U.S. fishermen to fish for allocations of surplus stocks in the Russian Economic Zone. Permit application information is sent to the National Oceanic and Atmospheric Administration (NOAA) for transmission to Russia. If Russia issues a permit, the vessel owner or operator must submit a permit abstract report to NOAA, and also report 24 hours before leaving the U.S. Exclusive Economic Zone (EEZ) for the Russian Economic Zone and 24 hours before re-entering the EEZ after being in the Russian Economic Zone.
The permit application information is necessary to obtain a permit. NOAA uses the other information to help ensure compliance with Russian and U.S. fishery management regulations.
Forms are used for applications. Submission of copies of permits, vessel abstract reports, and depart and return messages are provided by fax.
Comments are invited on: (a) whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency’s estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
National Marine Sanctuary Program (NMSP), National Ocean Service (NOS), National Oceanic and Atmospheric Administration, Department of Commerce (DOC).
Notice and request for applications.
The Cordell Bank National Marine Sanctuary (CBNMS or Sanctuary) is seeking applicants for the following five vacant seats on its Sanctuary Advisory Council (Council): Research, Education, Maritime Activities, and Community-At-Large (2 seats). Applicants are chosen based upon their particular expertise and experience in relation to the seat for which they are applying; community and professional affiliations; philosophy regarding the conversation and management of marine resources; and the length of residence in the area affected by the Sanctuary. Applicants who are chosen as members should expect to serve three-year terms, pursuant to the Council's Charter.
Applications are due by August 31, 2001.
Application kits may be obtained from Maria Brown, Cordell Bank National Marine Sanctuary, The Presidio of San Francisco, Building 991, P.O. Box 29386, San Francisco, California, 94129. Completed applications should be sent to the same address.
Maria Brown at (415) 561-6625 or mbrown@farallones.org.
The Council functions in an advisory capacity to the Sanctuary Manager and will be instrumental in helping to develop policies and program goals, and to identify education, outreach, research, long-term monitoring, resource protection and revenue enhancement priorities. The Council will work in concert with the Sanctuary Manager by keeping him or her informed about issue of concern throughout the Sanctuary, offering recommendations on specific issues, and aiding the Manager in achieving the goals of the Sanctuary program within the context of California's marine programs and policies.
16 U.S.C. Section 1431
National Marine Sanctuary Program (NMSP), National Ocean Service (NOS), National Oceanic and Atmospheric Administration, Department of Commerce (DOC).
Notice and request for applications.
The Gulf of the Farallones National Marine Sanctuary (GFNMS or Sanctuary) is seeking applicants for the following six vacant seats on its Sanctuary Advisory Council (Council): Research, Education, Maritime Activities, and Community-At-Large (3 seats). Applicants are chosen based upon their particular expertise and experience in relation to the seat for which they are applying; community and professional affiliations; philosophy regarding the conservation and management of marine resources; and the length of residence in the area affected by the Sanctuary. Applicants who are chosen as members should expect to serve three-year terms, pursuant to the Council's Charter.
Applications are due by August 31, 2001.
Application kits may be obtained from Maria Brown, Gulf of the Farallones National Marine Sanctuary, The Presidio of San Francisco, Building 991, P.O. Box 29386, San Francisco, California, 94129. Completed applications should be sent to the same address.
Maria Brown at (415) 561-6625 or mbrown@farallones.org.
The Council functions in an advisory capacity to the Sanctuary Manager and will be instrumental in helping to develop policies and program goals, and to identify education, outreach, research, long-term monitoring, resource protection and revenue enhancement priorities. The Council will work in concert with the Sanctuary Manager by keeping him or her informed about issues of concern throughout the Sanctuary, offering recommendations on specific issues, and aiding the Manager in achieving the goals of the Sanctuary program within the context of California's marine programs and policies.
16 U.S.C. Section 1431
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meeting.
The New England Fishery Management Council (Council) is scheduling a public meeting of its Groundfish Advisory Panel in August, 2001. Recommendations from the committee will be brought to the full Council for formal consideration and action, if appropriate.
The meeting will held on Thursday, August 16, 2001, at 9:30 a.m.
The meeting will be held at the Sheraton Colonial Hotel, One Audubon Road, Wakefield, MA 01880; telephone: (781) 245-9300.
Paul J. Howard, Executive Director, New England Fishery Management Council; (978) 465-0492.
The Groundfish Advisory Panel will provide guidance to the Council and its committees as directed by the Capacity Committee on the subject of reducing latent effort (excess capacity) and possible modification to permit transfer restrictions. The Council may consider measures to address these issues, such as restrictions on unused days-at-sea (DAS), for inclusion for Amendment 13 to the Northeast Multispecies Fishery Management Plan as part of Amendment 13 or for a later amendment.
Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305 (c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take final action to address the emergency.
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Paul J. Howard (see
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meetings.
The New England Fishery Management Council (Council) is scheduling public meetings of its Herring Advisory Panel with the Mid Atlantic Fishery Council’s Mackerel Advisory Panel and its Herring Oversight Committee in August, 2001 to consider actions affecting New England fisheries in the exclusive economic zone (EEZ). Recommendations from these groups will be brought to the full Council for formal consideration and action, if appropriate.
The meetings will be held on August 15 and August 22, 2001. See
The meetings will be held in Wakefield and Danvers, MA. See
Paul J. Howard, Executive Director, New England Fishery Management Council; (978) 465-0492.
Wednesday, August 15, 2001 at 9:30 a.m. - Joint Herring Advisory Panel and Mid Atlantic Fishery Council Mackerel Advisory Panel Meeting.
Location: Sheraton Colonial, One Audubon Road, Wakefield, MA 01880; telephone: (781) 245-9300.
This group will discuss issues and options for limited entry/controlled
Wednesday, August 22, 2001 at 9:30 a.m. - Herring Oversight Committee Meeting
Location: Sheraton Ferncroft, 50 Ferncroft Drive, Danvers, MA 01923; telephone: (781) 777-2500.
The committee will review advisory panel recommendations and finalize recommendations to the Council, in its scheduling of work-load priorities, on what management actions should be undertaken in 2002 regarding the development of a limited entry/controlled access program. The committee will also discuss issues and options for Framework 1 to the Herring Fishery Management Plan. Framework 1 would implement a split season quota for Area 1A. They will also discuss a request for an increase in the joint venture (JV) allocation through a mid-season adjustment.
Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305 (c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take final action to address the emergency.
These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Paul J. Howard (see
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Issuance of permit amendment.
Notice is hereby given that Dr. Peter L. Tyack, Ph.D., Woods Hole Oceanographic Institution, Biology Department, 46 Water Street, Woods Hole, MA 02543 has been issued an amendment to scientific research Permit No.981-1578-00.
The amendment and related documents are available for review upon written request or by appointment in the following office(s):
Permits and Documentation Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910; phone (301) 713-2289; fax (301) 713-0376;
Northeast Region, NMFS, One Blackburn Drive, Gloucester, MA S. longirostris 01930-2298; phone (978) 281-9200; fax (978) 281-9371;
Southeast Region, NMFS, 9721 Executive Center Drive North, St. Petersburg, FL 33702-2432; phone (727) 570-5301; fax (727) 570-5320.
Tammy Adams or Gene Nitta, (301) 713-2289.
On June 8, 2001, notice was published in the
This permit, as amended, authorizes tagging of and playbacks to one additional species of baleen whale (Bryde’s whale,
Issuance of this amendment, as required by the ESA was based on a finding that such permit (1) was applied for in good faith, (2) will not operate to the disadvantage of the endangered species which is the subject of this permit, and (3) is consistent with the purposes and policies set forth in section 2 of the ESA.
Notice.
The Department of Defense has submitted to OMB for clearance, the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
Written comments and recommendations on the proposed information collection should be sent to Mr. Oleinick at the Office of Management and Budget, Desk Officer for DoD (Acquisition), Room 10236, New Executive Office Building, Washington, DC 20503.
Written requests for copies of the information collection proposal should be sent to Mr. Cushing, WHS/DIOR, 1215 Jefferson Davis Highway, Suite 1204, Arlington, VA 22202-4302.
Notice.
The Department of Defense has submitted to OMB for clearance, the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
Written comments and recommendations on the proposed information collection should be sent to Mr. Springer at the Office of Management and Budget, Desk Officer for DoD, Room 10236, New Executive Office Building, Washington, DC 20503.
Written requests for copies of the information collection proposal should be sent to Mr. Cushing, WHS/DIOR, 1215 Jefferson Davis Highway, Suite 1204, Arlington, VA 22202-4302.
Notice.
The Department of Defense has submitted to OMB for clearance, the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
Written comments and recommendations on the proposed information collection should be sent to Mr. Springer at the Office of Management and Budget, Desk Officer for DoD, Room 10236, New Executive Office Building, Washington, DC 20503.
Written requests for copies of the information collection proposal should be sent to Mr. Cushing, WHS/DIOR, 1215 Jefferson Davis Highway, Suite 1204, Arlington, VA 22202-4302.
Department of Education.
The Leader, Regulatory Information Management Group, Office of the Chief Information Officer, invites comments on the proposed information collection requests as required by the Paperwork Reduction Act of 1995.
Interested persons are invited to submit comments on or before October 1, 2001.
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that the Office of Management and Budget (OMB) provide interested Federal agencies and the public an early opportunity to comment on information collection requests. OMB may amend or waive the requirement for public consultation to the extent that public participation in the approval process would defeat the purpose of the information collection, violate State or Federal law, or substantially interfere with any agency's ability to perform its statutory obligations. The Leader, Regulatory Information Management Group, Office of the Chief Information Officer, publishes that notice containing proposed information collection requests prior to submission of these requests to OMB. Each proposed information collection, grouped by office, contains the following: (1) Type of review requested, e.g. new, revision, extension, existing or reinstatement; (2) Title; (3) Summary of the collection; (4) Description of the need for, and proposed use of, the information; (5) Respondents and frequency of collection; and (6) Reporting and/or Recordkeeping burden. OMB invites public comment. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology.
Responses: 2,400.
Burden Hours: 359.
Requests for copies of the proposed information collection request may be accessed from
Comments regarding burden and/or the collection activity requirements should be directed to Kathy Axt at (540) 776-7742 or via her internet address Kathy.Axt@ed.gov. Individuals who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339.
Department of Education.
Notice of proposed information collection requests.
The Leader, Regulatory Information Management, Office of the Chief Information Officer, invites comments on the proposed information collection requests as required by the Paperwork Reduction Act of 1995.
An emergency review has been requested in accordance with the Act (44 U.S.C. Chapter 3507 (j)), since public harm is reasonably likely to result if normal clearance procedures are followed. Approval by the Office of Management and Budget (OMB) has been requested by October 1, 2001. A regular clearance process is also beginning. Interested persons are invited to submit comments on or before October 1, 2001.
Written comments regarding the emergency review should be addressed to the Office of Information and Regulatory Affairs, Attention: Lauren Wittenberg, Desk Officer: Department of Education, Office of Management and Budget; 725 17th Street, NW., Room 10235, New Executive Office Building, Washington, DC 20503 or should be electronically mailed to the internet address Lauren_Wittenberg@omb.eop.gov.
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that the Director of OMB provide interested Federal agencies and the public an early opportunity to comment on information collection requests. The Office of Management and Budget (OMB) may amend or waive the requirement for public consultation to the extent that public participation in the approval process would defeat the purpose of the information collection, violate State or Federal law, or substantially interfere with any agency's ability to perform its statutory obligations. The Leader, Information Management Group, Office of the Chief Information Officer, publishes this notice containing proposed information collection requests at the beginning of the Departmental review of the information collection. Each proposed information collection, grouped by office, contains the following: (1) Type of review requested, e.g., new, revision, extension, existing or reinstatement; (2) Title; (3) Summary of the collection; (4) Description of the need for, and
Responses: 600.
Burden Hours: 450.
Requests for copies of the proposed information collection request should be addressed to Vivian Reese, Department of Education, 400 Maryland Avenue, SW., Room 4050, Regional Office Building 3, Washington, DC 20202-4651, or should be electronically mailed to the internet address OCIO_IMG_Issues@ed.gov, or should be faxed to 202-708-9346.
Comments regarding burden and/or the collection activity requirements, contact Kathy Axt at (540) 776-7742 or via her internet address Kathy.Axt@ed.gov. Individuals who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339.
Take notice that on July 23, 2001, ANR Pipeline Company (ANR) tendered for filing as part of its FERC Gas Tariff, Second Revised Volume No. 1, the following tariff sheets with an effective date of August 22, 2001:
ANR states that these tariff sheets modify ANR's tariff to provide for a general waiver of the “shipper must have title rule” in the event that ANR is transporting gas for others on acquired off-system capacity and to include a general statement that ANR will only transport for others using off-system capacity pursuant to its existing tariff and rates.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Sections 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with Section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. Copies of this filing are on file with the Commission and are available for public inspection. This filing may also be viewed on the web at
Take notice that on June 28, 2001, Columbia Gas Transmission Corporation (Columbia) tendered for filing supported information on the NTS Service Agreement No. 2001-5-10-002 filed on May 18, 2001, an agreement for firm transportation service to be provided by Columbia to DPL Energy (DPL Agreement).
Columbia states that it is filing the supported information in compliance with the Commission's June 13th order.
Columbia states that copies of the filing is being served to each party on the official service list in Docket No. RP01-423-000.
Any person desiring to protest said filing should file a protest with the Federal Energy Regulatory Commission, 888 First Street, N.E., Washington, D.C. 20426, in accordance with Section 385.211 of the Commission's Rules and Regulations. All such protests must be filed on or before August 3, 2001. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Copies of this filing are on file with the Commission and are available for public inspection. This filing may also be viewed on the web at
Take notice that on July 13, 2001, Eastern Shore Natural Gas Company (Eastern Shore) tendered for filing its response to the Commission's June 27, 2001 order
Any person desiring to protest said filing should file a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Section 385.211 of the Commission's Rules and Regulations. All such protests must be filed on or before August 2, 2001. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Copies of this filing are on file with the Commission and are available for public inspection. This filing may be viewed on the Commission's web site at
Take notice that on July 20, 2001, Gulf South Pipeline Company, LP (Gulf South) tendered for filing as part of its FERC Gas Tariff, Sixth Revised Volume No. 1, the following tariff sheets, to become effective August 20, 2001:
Gulf South states the purpose of this filing is to modify Gulf South's tariff to provide for a general waiver of the “shipper must have title” rule for off-system transportation or storage capacity that Gulf South has acquired and to include a statement that Gulf South will only transport gas for others using off-system capacity pursuant to its existing tariff and rates.
Gulf South copies of this filing have been served upon Gulf South's customers, state commissions and other interested parties.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, N.E., Washington, D.C. 20426, in accordance with Sections 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with Section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. Copies of this filing are on file with the Commission and are available for public inspection. This filing may also be viewed on the web at
Take notice that on July 18, 2001, Kern River Gas Transmission Company (Kern River), 295 Chipeta Way, Salt Lake City, Utah 84158, filed in Docket No. CP01-405-000 an abbreviated application pursuant to Section 7(c) of the Natural Gas Act (NGA) and Part 157 of the Federal Energy Regulatory Commission's Regulations, for a certificate of public convenience and necessity authorizing Kern River to construct and operate: (1) Approximately 31.6 miles of 24-inch diameter delivery lateral pipeline in San Bernardino County, California (High Desert Lateral), extending from interconnects with the Kern/Mojave Common Facilities and the Pacific Gas & Electric Company (PG&E) system to the gas-fired electricity generating plant (HDPP) being built by High Desert Power Project, LLC (High Desert Power) near Victorville, California; (2) a 20-inch mainline tap on the Kern River/Mojave Pipeline Common Facilities near Kramer Junction and a receipt meter station at the start of the High Desert Lateral (Kern/Mojave Interconnect); (3) a bi-directional meter station and piping to interconnect with PG&E at the start of the High Desert Lateral, along with piping/valves to accommodate potential future installation of interconnect compression facilities (PG&E Interconnect); and (4) a delivery meter station at the terminus of the High Desert Lateral (High Desert Meter Station), all as more fully set forth in the application which is on file with the Commission and open to public inspection. Copies of this filing are on file with the Commission and are available for public inspection. This filing may also be viewed on the web at
Kern River states that Victorville-Gas, LLC (Victorville-Gas), the fuel supplier
Kern River states that it also is requesting approval of: (1) pro forma Rate Schedules KRF-L1 and KRI-L1 for firm and interruptible transportation service on the High Desert Lateral and other pro forma tariff provisions related to such service; (2) initial recourse rates for service under the new rate schedules; (3) the negotiated rate transportation service agreement with its initial firm shipper, Victorville-Gas; and (4) its related proposed accounting treatment; all as described more fully in the application.
Kern River states that High Desert Power and Victorville-Gas are both subsidiaries of Constellation Energy Group and that High Desert Power is constructing the HDPP, a 720 megawatt natural gas-fired, combined-cycle electric generating facility. Construction commenced in April, 2001; test operations currently are scheduled to begin in September, 2002; and commercial operation is scheduled to occur by July 1, 2003. Kern River states that the electricity generated at the HDPP will be sold to the California Department of Water Resources as a base-load resource to help serve growing power needs in Southern California. According to Kern River, High Desert Power initially will require up to approximately 141,000 Dth per day of natural gas to operate the HDPP.
Kern River states that the estimated cost of the proposed facilities is approximately $28.9 million and that the resulting recourse rate under the proposed KRF-L1 rate schedule will be $0.0583 per Dth of Maximum Daily Quantity.
Any questions regarding this application should be directed to Gary Kotter, Manager, Certificates, Kern River Gas Transmission Company, P.O. Box 58900, Salt Lake City, Utah 84158, at (801) 584-7117.
There are two ways to become involved in the Commission's review of this project. First, any person wishing to obtain legal status by becoming a party to the proceedings for this project should, on or before August 17, 2001, file with the Federal Energy Regulatory Commission, 888 First Street, NE, Washington, DC 20426, a motion to intervene in accordance with the requirements of the Commission's Rules of Practice and Procedure (18 CFR 385.214 or 385.211) and the Regulations under the NGA (18 CFR 157.10). A person obtaining party status will be placed on the service list maintained by the Secretary of the Commission and will receive copies of all documents filed by the applicant and by all other parties. A party must submit 14 copies of filings made with the Commission and must mail a copy to the applicant and to every other party in the proceeding. Only parties to the proceeding can ask for court review of Commission orders in the proceeding.
However, a person does not have to intervene in order to have comments considered. The second way to participate is by filing with the Secretary of the Commission, as soon as possible, an original and two copies of comments in support of or in opposition to this project. The Commission will consider these comments in determining the appropriate action to be taken, but the filing of a comment alone will not serve to make the filer a party to the proceeding. The Commission's rules require that persons filing comments in opposition to the project provide copies of their protests only to the party or parties directly involved in the protest.
Persons who wish to comment only on the environmental review of this project should submit an original and two copies of their comments to the Secretary of the Commission. Environmental commenters will be placed on the Commission's environmental mailing list, will receive copies of the environmental documents, and will be notified of meetings associated with the Commission's environmental review process. Environmental commenters will not be required to serve copies of filed documents on all other parties. However, the non-party commenters will not receive copies of all documents filed by other parties or issued by the Commission (except for the mailing of environmental documents issued by the Commission) and will not have the right to seek court review of the Commission's final order.
The Commission may issue a preliminary determination on non-environmental issues prior to the completion of its review of the environmental aspects of the project. This preliminary determination typically considers such issues as the need for the project and its economic effect on existing customers of the applicant, on other pipelines in the area, and on landowners and communities. For example, the Commission considers the extent to which the applicant may need to exercise eminent domain to obtain rights-of-way for the proposed project and balances that against the non-environmental benefits to be provided by the project. Therefore, if a person has comments on community and landowner impacts from this proposal, it is important either to file comments or to intervene as early in the process as possible.
Comments, protests and interventions may be filed electronically via the Internet in lieu of paper. See, 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's web site under the “e-Filing” link.
If the Commission decides to set the application for a formal hearing before an Administrative Law Judge, the Commission will issue another notice describing that process. At the end of the Commission's review process, a final Commission order approving or denying a certificate will be issued.
Take notice that on July 16, 2001, Tennessee Gas Pipeline Company (Tennessee), P. O. Box 2511, Houston, Texas, filed a request pursuant to sections 157.205, 157.208(b)(2) and 157.211(a)(2) of the Federal Energy Regulatory Commission's (the Commission) Regulations under the Natural Gas Act (NGA), as amended, and blanket certificate authority granted September 1, 1982, in Docket No. CP82-413-000, 20 FERC ¶ 62,409 for authorization to construct, own and operate a lateral line compressor station and a meter station in order to implement firm transportation services for the Rhode Island State Energy Partners L.P. (RISEP) electric generating plant located in Providence County, Rhode Island, and the Providence Gas Company (Providence Gas), all as more fully set forth in the request, which is on file with the Commission, and open for public inspection. This filing may be viewed on the web at
Tennessee states that the compressor station will consist of a single 7,150 horsepower natural gas driven compressor unit located adjacent to Tennessee's Rhode Island Lateral, Line No. 265E-100, in Providence County, Rhode Island. Addition of the compressor station will increase the capacity of the line by approximately 100 MMcf/day. Tennessee estimates the cost of construction for the compressor station is $14,100,000.
The proposed meter station will serve the RISEP power generation plant and will be located on the power plant site. The facilities will consist of a tie-in assembly, a Tee connection to the lateral line and a 12-inch ball and check valve. Tennessee estimates that approximately 250 feet of 12-inch pipe will be required to connect the tie-in assembly to the meter station that will include a 2-inch turbine meter, a 6-inch ultrasonic meter and an 8-inch ultrasonic meter as well as electronic gas measurement equipment, and other appurtenances. The estimated cost of the tap and meter station is approximately $976,800. RISEP will reimburse Tennessee approximately $210,000 to cover the cost of “tap facilities” as defined in the general terms and conditions of Tennessee's FERC Gas Tariff.
Any questions regarding this filing should be directed to Jay V. Allen, Counsel, call 832-676-5589 or Thomas G. Joyce, Certificates Manager, call 832-676-3299, Tennessee Gas Pipeline Company, 9 E Greenway Plaza, Houston, Texas 77046-0905.
Any person or the Commission's staff may, within 45 day after issuance of the instant notice by the Commission, file pursuant to Rule 214 of the Commission's Procedural Rules (18 CFR 385.214) a motion to intervene or notice of intervention and pursuant to Section 157.205 of the Regulations under the NGA (18 CFR 157.205), a protest to the request. If no protest is filed within the time allowed therefor, the proposed activity shall be deemed to be authorized effective the day after the time allowed for protest. If a protest is filed and not withdrawn within 30 days after the time allowed for filing a protest, the instant request shall be treated as an application for authorization pursuant to Section 7 of the NGA. Comments, protests and interventions may be filed electronically via the Internet in lieu of paper. See, 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's web site at
Take notice that the following filings have been made with the Commission:
Take notice that on June 21, 2001, Excel Energy Services, Inc. tendered for filing a notice of withdrawal the application it filed December 29, 2000 in Docket No. EC01-51-000.
Take notice that on July 24, 2001, Allegheny Energy Service Corporation on behalf of Allegheny Energy Supply Lincoln Generating Facility, LLC (Lincoln) filed revisions to its Market Rate Tariff in compliance with the Commission's Order of July 13, 2001 at Docket No. ER00-2066-000. Copies of the filing have been provided to the Public Utilities Commission of Ohio, the Pennsylvania Public Utility Commission, the Maryland Public Service Commission, the Virginia State Corporation Commission and the West Virginia Public Service Commission.
Take notice that on July 24, 2001, Allegheny Energy Service Corporation on behalf of Allegheny Energy Supply Gleason Generating Facility, LLC (Gleason) filed revisions to its Market Rate Tariff in compliance with the Commission's Order of July 13, 2001, at Docket No. ER00-2066-000.
Copies of the filing have been provided to the Public Utilities Commission of Ohio, the Pennsylvania Public Utility Commission, the Maryland Public Service Commission, the Virginia State Corporation Commission and the West Virginia Public Service Commission.
Take notice that on July 24, 2001, Allegheny Energy Service Corporation on behalf of Allegheny Energy Supply Wheatland Generating Facility, LLC (Wheatland) filed revisions to its Market Rate Tariff in compliance with the Commission's Order of July 13, 2001 at Docket No. ER00-2066-000.
Copies of the filing have been provided to the Public Utilities Commission of Ohio, the Pennsylvania Public Utility Commission, the Maryland Public Service Commission, the Virginia State Corporation Commission and the West Virginia Public Service Commission.
Take notice that on July 10, 2001, Arizona Public Service Company (APS) tendered for filing a revised Contract Demand Exhibit 1 applicable under the APS-FERC Rate Schedule No. 192 between APS and the City of Williams (Williams) for the operating year 2002.
Copies of this filing have been served on the City of Williams, and the Arizona Corporation Commission.
Take notice that on July 23, 2001, Combined Locks Energy Center, LLC (CLEC) filed an application for market-based rate authority pursuant to Section 205 of the Federal Power Act. The application includes a market-based rate tariff, a form of umbrella service agreement and a code of conduct (the Tariff). CLEC requests that its Tariff become effective on September 22, 2001, sixty days after the date of this filing.
CLEC has served this filing on the Public Service Commission of Wisconsin.
Take notice that on July 23, 2001, Cinergy Services, Inc. (Provider) tendered for filing a Non-Firm Point-To-Point Service Agreement under Cinergy's Open Access Transmission Service Tariff (OATT) entered into between Cinergy and Capline Energy Services, L.P. (Customer).
Provider and Customer are requesting an effective date of June 25, 2001.
Take notice that Cinergy Services, Inc. (Cinergy) and Exelon Generation Company, LLC (ExGen), on July 23, 2001, are requesting via a Notice of Assignment that ExGen will replace PECO Energy Corporation of Cinergy's Market-Based Power Sales Tariff Original Volume No. 7-MB, Service Agreement No. 88, dated October 29, 1997.
Cinergy and ExGen are requesting an effective date of one day after filing.
Take notice that on July 23, 2001, Cinergy Services, Inc. (Cinergy) tendered for filing a Market-Based Service Agreement under Cinergy's Market-Based Power Sales Standard Tariff-MB (the Tariff) entered into between Cinergy and Energy USA—TPC Corp. (Energy USA).
Cinergy and Energy USA are requesting an effective date of June 22, 2001.
Take notice that on July 23, 2001, Cinergy Services, Inc. (Provider) tendered for filing a Firm Point-To-Point Service Agreement under Cinergy's Open Access Transmission Service Tariff (OATT) entered into between Provider and Capline Energy Services, L.P. (Customer).
Provider and Customer are requesting an effective date of June 25, 2001.
Take notice that on July 24, 2001, Tampa Electric Company (Tampa Electric) tendered for filing a service agreement with Duke Energy Trading and Marketing, L.L.C. (Duke Energy) for non-firm point-to-point transmission service under Tampa Electric's open access transmission tariff. Copies of the filing have been served on Duke Energy and the Florida Public Service Commission.
Tampa Electric proposes an effective date of July 20, 2001, for the tendered service agreement, and therefore requests waiver of the Commission's notice requirement.
Take notice that on July 24, 2001, the New England Power Pool (NEPOOL) Participants Committee filed for acceptance materials to permit NEPOOL to expand its membership to include EmPower Energy, LLC (EmPower). The Participants Committee requests an effective date of August 1, 2001 for commencement of participation in NEPOOL by EmPower.
The Participants Committee states that copies of these materials were sent to the New England state governors and regulatory commissions and the Participants in NEPOOL.
Notice is hereby given that effective April 1, 2001, Service Agreement No. 17, effective July 26, 1997 under Wisconsin Electric Power Company's Coordination Sales Tariff, FERC Electric Tariff Second Revised Volume No. 2 has been canceled as requested by the customer Michigan Electric Coordinated Systems (MECS).
Copies of the filing have been served on MECS, Michigan Public Service Commission, and the Public Service Commission of Wisconsin.
Take notice that on July 24, 2001, WPS Resources Operating Companies (WPSR) filed a Notice of Cancellation for a firm point-to-point transmission service agreement with WE Power Marketing (WE Power) under its open access transmission tariff. WPSR seeks to cancel this service agreement because under Wisconsin's electricity restructuring, the American Transmission Company, LLC (ATCLLC) will provide transmission service to this customer. WPSR requests that this cancellation take effect June 29, 2001 or on a later date approved by the Commission. To the extent necessary, the WPSR requests waiver of the Commission's notice of filing requirements.
Copies of the filing were served upon WE Power, ATCLLC, the Michigan Public Service Commission and the Public Service Commission of Wisconsin.
Take notice that on July 24, 2001, American Electric Power Company, Inc. (AEP), on behalf of itself, the AEP Operating Companies, American Electric Power Service Corporation, AEP Generating Company, and certain new subsidiaries of AEP, tendered for approval, pursuant to Section 205 of the Federal Power Act, initial and amended rate schedules in connection with its corporate restructuring plan in compliance with the restructuring programs in Ohio and Texas to facilitate the introduction of retail competition in those two states on January 1, 2002.
Copies of this filing have been provided to the retail regulators of the AEP Operating Companies and various individuals and organizations, including AEP's wholesale customers.
Take notice that on July, 19, 2001, MDU Resources Group, Inc. (MDU Resources) submitted an application pursuant to section 204 of the Federal Power Act seeking authorization to issue no more than 2,600,000 shares of common stock in connection with MDU Resources' 401(k) Retirement Plan.
MDU resources also requests a waiver of the Commission's competitive bidding requirements and negotiated placement requirements at 18 CFR 34.2.
Take notice that on July 23, 2001, Golden Spread Electric Cooperative (Golden Spread) submitted an application, pursuant to Section 204 of the Federal Power Act and Part 34 of the Federal Energy Regulatory Commission's Regulations, for blanket approval for future issuances of securities and assumptions of liabilities. Golden Spread has requested an effective date of August 20, 2001.
E. Any person desiring to be heard or to protest such filing should file a motion to intervene or protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). All such motions or protests should be filed on or before the comment date. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a motion to intervene. Copies of this filing are on file with the Commission and are available for public inspection. This filing may also be viewed on the web at
The staff of the Federal Energy Regulatory Commission (FERC or Commission) has prepared a draft environmental impact statement (DEIS) that discusses the environmental impacts of the Maritimes Phase III/HubLine Project involving construction and operation of facilities by Maritimes & Northeast Pipeline, L.L.C. (Maritimes) in Essex and Middlesex Counties, Massachusetts and Algonquin Gas Transmission Company (Algonquin) in primarily offshore Essex, Suffolk, Plymouth, and Norfolk Counties, Massachusetts. There would be minor onshore facilities in Suffolk and Norfolk Counties. The project facilities would consist of about 25 miles of 30- and 24-inch-diameter onshore pipeline and about 35 miles of 24- and 16-inch-diameter offshore pipeline.
This notice is being sent to all persons to whom we
In addition to or in lieu of sending written comments, we invite you to attend the public comment meetings the FERC will conduct in the project area. The locations and time for the meetings are listed below:
The public meetings are designed to provide you with an opportunity to offer your comments on the DEIS in person. A transcript of the meetings will be made so that your comments will be accurately recorded.
You may also provide written comments. Instructions on how to provide written or electronic comments were included in the DEIS. Please send your comments so that they will be received in Washington, DC on or before August 27, 2001.
In accordance with the National Environmental Policy Act of 1969 and the Federal Energy Regulatory Commission's (Commission) regulations, 18 CFR Part 380 (Order No. 486, 52 FR 47897), the Office of Energy Projects has reviewed the application for a new license for the existing and operating Queens Creek Hydroelectric Project FERC No. 2694-002, located on Queens Creek, in Macon County, North Carolina and has prepared an Environmental Assessment (EA) for the project.
Copies of the EA are available for review in the Public Reference Branch, Room 2-A, of the Commission's offices at 888 First Street, NE., Washington, DC 20426. The EA may also be viewed on the web at http://www.ferc.gov using the “RIMS” link, select “Docket#” and follow the instructions (call 202-208-2222 for assistance).
Any comments should be filed within 30 days from the date of this notice and should be addressed to David P. Boergers, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Room 1-A, Washington, DC 20426. Please affix “Queens Creek Hydroelectric Project No. 2694-002” to the top page of all comments. Comments, protests and interventions may be filed electronically via the Internet in lieu of paper. See, 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's web site under the “e-Filing” link. For further information,
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
Please include the project number(P-405-053) on any comments or motions filed.
All documents (original and seven copies) should be filed with: David P. Boergers, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426.
k.
The SEC is concerned about the ability of the Conowingo Project to maintain an adequate pond level and storage capacity during the current low flow period. Maintaining storage is necessary for generation and to ensure an adequate water supply for recreational and consumptive uses of the Conowingo Reservoir to include operation of Peach Bottom Atomic Power Station and Muddy Run Pumped Storage Project. Including plant leakage in the minimum flow discharge will contribute to the maintenance of these project water uses during this low flow period. During the period of the minimum flow variance the SEC will conduct daily monitoring of the Susquehanna River below the project for potential environmental effects. If any abnormal or adverse conditions are observed the SEC will promptly notify the Maryland Department of Natural Resources.
l.
m. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
n. Protests or Motions to Intervene—Anyone may submit a protest or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210. 385.211, and 385.2114. In determining the appropriate action to take, the Commission will consider all protests filed, but only those who file a motion to intervene in accordance with the Commission's Rules may become a party to the proceeding. Any protests or motions to intervene must be received on or before the specified deadline date for the particular application.
o. Filing and Service of Responsive Documents—Any filings must bear in all capital letters the title “COMMENTS”, “RECOMMENDATION FOR TERMS AND CONDITIONS”, “PROTESTS, OR MOTION TO INTERVENE”, as applicable, and the Project Number of the particular application to which the filing refers. Any of the above-named documents must be filed by providing the original and the number of copies provided by the Commission's regulations to: The Secretary, Federal Energy Regulatory Commission, 888 First Street, N.E., Washington, DC 20426. A copy of any motion to intervene must also be served upon each representative of the Applicant specified in the particular application.
p. Agency Comments—Federal, state, and local agencies are invited to file comments on the described application. A copy of the application may be obtained by agencies directly from the Applicant. If an agency does not file comments within the time specified for filing comments, it will be presumed to have no comments. One copy of an agency's comments must also be sent to the Applicant's representatives.
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
a.
b.
c.
d.
e.
f.
g.
h.
i.
All documents (original and eight copies) should be filed with: David P. Boergers, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. Motions to intervene, protests, and comments may be filed electronically via the internet in lieu of paper. See, 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's web site at
Please include the project number (P-12064-000) on any comments or motions filed. The Commission's Rules of Practice and Procedure require all interveners filing documents with the Commission to serve a copy of that document on each person in the official service list for the project. Further, if an intervener files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
j.
k. A copy of the application is available for inspection and reproduction at the Commission's Public Reference Room, located at 888 First Street, NE., Room 2A, Washington, DC 20426, or by calling (202) 208-1371. The application may be viewed on http://www.ferc.fed.us/online/rims.htm (call (202) 208-2222 for assistance). A copy is also available for inspection and reproduction at the address in item g above.
l. Preliminary Permit—Anyone desiring to file a competing application for preliminary permit for a proposed project must submit the competing application itself, or a notice of intent to file such an application, to the Commission on or before the specified comment date for the particular application (see 18 CFR 4.36). Submission of a timely notice of intent allows an interested person to file the competing preliminary permit application no later than 30 days after the specified comment date for the particular application. A competing preliminary permit application must conform with 18 CFR 4.30(b) and 4.36.
m. Preliminary Permit—Any qualified development applicant desiring to file a competing development application must submit to the Commission, on or before a specified comment date for the particular application, either a competing development application or a notice of intent to file such an application. Submission of a timely notice of intent to file a development application allows an interested person to file the competing application no later than 120 days after the specified comment date for the particular application. A competing license application must conform with 18 CFR 4.30(b) and 4.36.
n. Notice of Intent—A notice of intent must specify the exact name, business address, and telephone number of the prospective applicant, and must include an unequivocal statement of intent to submit, if such an application may be filed, either a preliminary permit application or a development application (specify which type of application). A notice of intent must be served on the applicant(s) named in this public notice.
o. Proposed Scope of Studies under Permit—A preliminary permit, if issued, does not authorize construction. The term of the proposed preliminary permit would be 36 months. The work proposed under the preliminary permit would include economic analysis, preparation of preliminary engineering plans, and a study of environmental impacts. Based on the results of these studies, the Applicant would decide whether to proceed with the preparation of a development application to construct and operate the project.
p. Comments, Protests, or Motions to Intervene—Anyone may submit comments, a protest, or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210, .211, .214. In determining the appropriate action to take, the Commission will consider all protests or other comments filed, but only those who file a motion to intervene in accordance with the Commission's Rules may become a party to the proceeding. Any comments, protests, or motions to intervene must be received on or before the specified comment date for the particular application.
q. Filing and Service of Responsive Documents—Any filings must bear in all capital letters the title “COMMENTS”, “NOTICE OF INTENT TO FILE COMPETING APPLICATION”, “COMPETING APPLICATION”, “PROTEST”, or “MOTION TO INTERVENE”, as applicable, and the Project Number of the particular application to which the filing refers. Any of the above-named documents must be filed by providing the original and the number of copies provided by the Commission's regulations to: The Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. An additional copy must be sent to Director, Division of Hydropower Administration and Compliance, Federal Energy Regulatory Commission, at the above-mentioned address. A copy of any notice of intent, competing application or motion to intervene must also be served upon each representative of the Applicant specified in the particular application.
r. Agency Comments—Federal, state, and local agencies are invited to file comments on the described application. A copy of the application may be obtained by agencies directly from the Applicant. If an agency does not file comments within the time specified for filing comments, it will be presumed to have no comments. One copy of an agency's comments must also be sent to the Applicant's representatives.
Federal Energy Regulatory Commission, Energy.
Notice.
The Commission is issuing an order imposing certain reporting requirement on natural gas sellers and transporters serving the California market. This reporting requirement is for a limited time, and is intended to provide the Commission with the necessary information to determine what action, if any, it should take within its jurisdiction.
The reporting requirement covers the six months from August 1, 2001 to January 31, 2002, and the first report is due October 1, 2001.
Jacob Silverman, Office of the General Counsel, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, (202) 208-2078
Before Commissioners: Curt Herbert, Jr., Chairman; William L. Massey, Linda Breathitt, Pat Wood, III and Nora Mead Brownell; Reporting of Natural Gas Sales To the California Market
On May 18, 2001, the Commission issued an order (May 18 order) proposing to impose a reporting requirement on natural gas sellers and transporters serving the California market.
In this order, the Commission concludes that it has the authority to request the information set forth in the May 18 order, and that the filing of such information by the entities identified in this order is necessary for the Commission to understand why the disparity in the price of natural gas arose in California relative to the remainder of the country and in doing so discharge our statutory responsibilities. Consequently, the order requires sellers and transporters of natural gas serving the California market to submit the information specified in this order. The information is to be submitted monthly for the six-month period covering August 1, 2001, through January 31, 2002, with the intention to extend the reporting requirement, upon approval by the Office of Management and Budget, through September 30, 2002, to coincide with the end date of the Commission's mitigation plan regarding wholesale electricity prices in California and the West.
The May 18 order discussed our concern about a sharp increase in the price of natural gas sold in the California market, which has exceeded the increase in other markets. The Commission pointed out that the price for gas at various points on the southern California border remained higher than those in any other market in the United States, including those markets that are supplied by the same producing areas. The Commission stated that it did not currently have reliable information concerning the percentage of gas moving into the California market that is actually priced at the high spot market prices reported at the California borders.
The May 18 order noted that the increase in the price of natural gas in California was the focus of a number of complaints. Among the actions the complainants sought were (1) reimposing price-caps for short-term releases of capacity for service to the California border and to points of interconnection between interstate pipelines and California local distribution companies (LDCs),
The May 18 order stated that while the relatively high prices for natural gas in California were a matter of serious concern, the Commission's legal authority to take actions that would affect those prices is limited by the existing statutory framework. The Commission does have jurisdiction under the Natural Gas Act (NGA) to regulate the transportation of natural gas by interstate pipelines, and to issue certificates for the construction of new interstate pipelines. However, the Commission's jurisdiction to regulate the prices charged by sellers of natural gas is limited by the Natural Gas Policy Act of 1978 (NGPA), and Congress' subsequent enactment of the Natural Gas Wellhead Decontrol Act of 1989. The May 18 order found that the end result of these statutory provisions is that the only sales of natural gas that the Commission currently has jurisdiction to regulate are sales for resale of domestic gas by pipelines, LDCs, or their affiliates.
Within this framework, and in order to help the Commission understand why the disparity in the price of natural gas had occurred in California and continues to exist, the Commission proposed to collect information from sellers of natural gas to the California market, and from interstate pipelines and LDCs serving the California market. The information proposed to be reported included data relating to the volumes and prices of sales to the California market including transportation rates, the daily operational capacity of pipelines to and in the California market, and the actual volumes flowing to and in California, and the gas sales and the transportation requirements of California LDCs.
The May 18 order stated that this information should assist the Commission in carrying out its regulatory responsibilities. First, it would help the Commission determine what part of the problem, if any, is within the scope of its jurisdiction. For example, the information to be collected concerning sales should enable the Commission to determine what percentage of the volumes sold into the
The Commission also stated that the information to be collected would enable it to determine the extent to which the cost of interstate transportation, which is subject to the Commission's jurisdiction, affects the price of the gas commodity at the California border. Currently, the Commission establishes maximum rates for interstate transportation, with the exception of negotiated rates and short-term capacity releases for which maximum rates have been waived until September 30, 2002.
The order proposed that respondents submit the information to the Commission on a quarterly basis, within thirty days after the end of the quarter. The Commission indicated that it would aggregate the data submitted and analyze it promptly. The Commission would then determine, what action, if any, is warranted.
The order provided for comments on the proposed reporting requirement within thirty days of the date of issuance of the order, and stated that after receipt of the comments, the Commission would determine whether to proceed with the proposed reporting requirement.
As indicated in the May 18 order and as discussed below, we find that it is necessary to collect the information set forth in the Appendix in order for the Commission to acquire a better understanding of how the California natural gas market functions in light of the fact that the price of natural gas in the California market has, for substantial periods, been higher than the price in other markets and trading hubs throughout the country. The Commission is also concerned about the operation of the California natural gas market since gas-fired electric generators in California help to establish the market clearing price for electric generation pursuant to the bidding system used by the California Independent System Operator.
In determining the appropriate amount of information and the period over which to gather such information, the Commission has reviewed the comments filed in this proceeding. The issues raised by commenters are addressed below. Upon consideration of the comments, the Commission will modify certain questions from those proposed in the May 18 order and will collect the information for a limited period. As discussed more fully below, the Commission finds that it has the authority to request the information it seeks from all entities, including non-jurisdictional parties.
The May 18 order stated that “the Commission recognizes that certain entities that will be required to respond to the data requests may not be natural gas companies subject to the Commission's NGA section 1 jurisdiction.”
The Commission may investigate any facts, conditions, practices, or matters which it may find necessary or proper in order to determine whether any person has violated or is about to violate any provision of [the NGA] or any rule, regulation, or order hereunder, or to aid in the enforcement of the provisions of this act or in prescribing rules or regulations thereunder, or in obtaining information to serve as a basis for recommending further legislation to the Congress.
A number of commenters question the Commission's conclusion that together, NGA sections 14 and 16 empower the Commission with the authority to require a non-jurisdictional entity to furnish the Commission with information that the Commission needs to carry out its functions. Commenters raising the jurisdictional issue point out that section 311 of the Federal Power Act (FPA)
The Commission finds that it has the authority to obtain the information requested from all entities. As discussed below the Commission is establishing the reporting requirement for a limited time period, and for the purpose of investigating a specific problem that is a matter of urgent concern both to it and the Congress.
Among other things, NGA section 14 allows the Commission to seek information “to aid in prescribing rules and regulations” necessary to carry out its responsibilities under the NGA. The May 18 order stated that a number of complaints have been filed seeking relief from the high cost of natural gas in the California market, and in those complaints it was also alleged that the high price of natural gas in California is a factor contributing to the high cost of electric power in California. The Commission needs the information it is seeking through this reporting requirement to determine what actions it can and should take with respect to the current problem involving the high price of natural gas in California, which
In this case, the Commission must have an overall picture of what is occurring in the California market in order to determine the potential effectiveness of actions within the Commission's jurisdiction. Only by collecting information concerning all California sales can the Commission obtain the overall picture and feel confident that any actions it might take would have the intended consequences.
The information obtained would permit the Commission to determine the extent to which the high price of natural gas in the California market involves a matter over which the Commission has jurisdiction.
NGA section 14 also authorizes the Commission to seek information “to serve as a basis for recommending further legislation to the Congress * * * .” The information being sought would be relevant in determining the effect of legislative proposals addressing the current situation. In the current session of Congress, a number of bills have been proposed to deal with the situation in California.
In this case there is a clear need for the information being sought and which is not otherwise available from other sources or other means. Furthermore, the information request is to address a specific problem—a problem which requires immediate attention. Accordingly, under the urgent and unique circumstances presented, the Commission finds that it has the authority to require non-jurisdictional entities to furnish the requested information. However, to minimize the burden on respondents and as discussed more fully below, the information will be collected for the minimum period necessary to inform the Commission regarding transactions affecting the price of natural gas in the California market.
Section 311 of the Federal Power Act (FPA) is an additional source of authority for adopting these reporting requirements. On June 19, 2001, the Commission issued an order involving price mitigation for the California power markets.
Under these circumstances, not only is the Commission's NGA section 14 and 16 authority applicable, but FPA section 311 also applies. That section authorizes the Commission, “as a basis for recommending legislation,” to request information “regarding the generation * * * of electric energy, however produced * * * whether or not subject to the jurisdiction of the Commission * * *” As a result the Commission has the authority to “investigate nonjurisdictional sales of nonjurisdictional companies.”
The Commission recognizes that in one decision by the Ninth Circuit Court of Appeals describing the more extensive language of FPA section 311, there is language that commenters contend is inconsistent with the Commission's action here. In
In any event, this case is distinguishable.
The May 18 order proposed to require submission of the information on a quarterly basis, within thirty days after the end of the quarter. The order did not indicate any termination date for the reporting period. Many of the comments urge the Commission to limit the reporting to a defined period of time.
As explained above, the purpose of the reporting requirement is to enable
Monthly reporting is a change from the quarterly reporting proposed in the May 18 order. Under a quarterly reporting requirement, the first data would not arrive until December 1, 2001. That would not be timely in the emergency circumstances that exist in California.
The Commission also believes the reporting period should cover the same period as the Commission's California electric power mitigation order. Accordingly, the Commission intends to seek approval from OMB to extend the reporting period to September 30, 2002, to coincide with the termination of that order. The Commission does not anticipate that it will require data after September 30, 2002, and thus would end the reporting period on that date. If the Commission should find that an extension beyond that time is necessary, the Commission would give notice of its intention and provide for an appropriate comment period.
A number of commenters urge that the submission of the requested information that gas sellers are required to report concerning their sales transactions must be accorded confidential treatment and should not be disclosed to the public. They argue that the requested information includes sensitive commercial data such as sales contract terms, identification of buyer, and specific transactions conducted at the California border or within the state. One commenter makes a similar argument about the information that LDCs are required to provide about their gas purchase contracts.
In the May 18 order, the Commission recognized the commercially sensitive nature of much of the information to be submitted by gas sellers concerning their sales transactions. The May 18 order stated that parties furnishing information can request confidential treatment for the information pursuant to Section 388.112 of the Commission's regulations.
Under section 388.112, if a party requests privileged treatment of any material submitted, that material will be placed in a nonpublic file. If public release of that document is sought under the Freedom of Information Act (FOIA), the party submitting the document will be notified of the request and given an opportunity to comment on the request. If the Commission determines to deny the claim of privilege, the submitter will be notified at least five days before public disclosure of the material, together with an explanation why the claim of privilege was denied. If the privilege claim is upheld, and the FOIA requester brings suit to compel disclosure, the Commission will notify the submitter of the suit.
FOIA contains nine exemptions from its general policy of mandating disclosure of government documents. The fourth exemption is for: trade secrets and commercial or financial information obtained from a person and privileged and confidential.
Certain questions adopted by this order require information about individual sales or purchase transactions. These include Questions 2, 3, and 4 directed to natural gas sellers, and Questions 4 and 8 and that part of Question 7 relating to prices directed to LDCs. For the reasons discussed below, the Commission finds that information about individual transactions provided in response to these questions falls under FOIA Exemption 4 as “trade secrets and commercial or financial information obtained from a person and privileged or confidential.” The Commission also finds that, in the context of the instant inquiry into the operation of the California natural gas market, the potential competitive harm from public disclosure outweighs any public interest in disclosure of data concerning individual sales transactions. Therefore, the Commission will not disclose information concerning individual transactions obtained in response to the above listed questions. This holding, as discussed below, does not apply to transportation information obtained from pipelines and LDCs.
The commercial sensitivity of information about individual sales transactions has been addressed in court and Commission rulings. In
The likelihood that delivery of these intimate facts would be harmful is apparent. * * * The compilation and disclosure to petitioners' competitors, purchasers and suppliers of information as to extent of supply and competitive prices in each market area would alter industry custom and existing relationships to the disadvantage of petitioners' competitive positions.
The same is true here. In Order No. 636, the Commission held that, with the
The Commission also finds that, in this case, there is no overriding public interest in disclosure of information about individual sales transactions. The Commission is seeking information here to understand the operation of the market for gas sales into California, not to investigate the conduct of particular participants in that market. Indeed, many of the sales in question are not subject to the Commission's NGA jurisdiction, and the Commission does not wish to impose more burdensome disclosure requirements on jurisdictional sellers, than on the non-jurisdictional sellers with whom they compete. In these circumstances, the Commission concludes that publication of aggregated information is sufficient to accomplish the purposes for which the Commission is seeking the information.
Accordingly, consistent with the ruling in
On the other hand, the information the Commission is requesting concerning transportation contracts with pipelines, such as capacity release transactions, would not be entitled to privileged treatment because pipelines are required to post that type of information on their web sites. Nevertheless, if privileged treatment is sought with respect to any information submitted, the Commission will follow the procedures of § 388.112, and apply the appropriate principles governing the particular information.
A number of commenters assert that compilation of the data will be burdensome, and others assert that the data requested is not likely to “tell the whole story.”
As explained above, the Commission is imposing the reporting requirement to help determine what actions it should take with respect to the substantial disparity that has arisen in the past year between natural gas prices at the California border and in the rest of the country. The relatively high natural gas prices also may be a factor in the extraordinary increases in the cost of electric power in California, since many generators consume natural gas. The Commission recognizes that the reporting requirement will require responders to expend time and manpower. Nevertheless, the data are necessary for the Commission to carry out its regulatory responsibilities with respect to the natural gas market, since the information will help the Commission determine what actions it can and should take to address a problem with serious adverse effect in California. Because of the immediacy of the problem, the Commission has decided to require reporting on a monthly basis, with the first submission due by October 1, 2001.
While some commenters point out that currently prices at the northern California border have decreased to levels approximating those in other areas of the country, the Commission will not narrow the reporting requirement to cover only the southern California market. During much of the last year, prices at the northern California border have been significantly higher than in other areas of the country, and it is not clear whether the current decrease in those prices is temporary. The Commission therefore continues to believe that information must be gathered with respect to the entire California gas market.
However, the Commission will not expand the reporting requirement to cover other areas of the country. While there have been natural gas price increases in the rest of the country, it is only in California that prices have been significantly different from prices elsewhere. As the May 18 order stated, ordinarily in a competitive, seamless national market for natural gas, where gas can flow to wherever it can command the highest price, price disparities between different regions would not be expected to continue for sustained periods of time. Higher prices in one region would cause more sellers to direct gas towards that region, thereby increasing the supply in that region, which would in turn lower the price in that region and bring it in line with the national average. It is only in California where, contrary to what should occur in a competitive market, significant price disparities as compared to the rest of the country have occurred for sustained periods of time. Therefore,
Some commenters have suggested that the reporting burden could be reduced (and greater assurance of confidentiality be provided) if respondents were permitted to provide only aggregated data concerning all their sales during a month or a quarter. Also, some commenters suggest that they be permitted to report data in the format in which they currently keep such data, rather than be required to provide data in a standardized format. The Commission does not adopt these suggestions. While the Commission intends to aggregate the data itself, transaction by transaction data is necessary to ensure that the Commission obtains a full picture of how the California market is working and to enable the Commission to verify the accuracy of any aggregated data. The Commission also must have the data filed in a consistent format to enable it to aggregate the data in a meaningful fashion. The Commission, as discussed above, will protect the sensitive nature of the data concerning individual sales transactions.
The Commission recognizes, as argued by some commenters, that some of the information may be in the Commission's possession through other filings, for example the reports pipelines are required to make to the Commission. However, requiring all the information to be filed here in a consistent format is necessary to speed the Commission's analysis of the data, so that it can take any actions indicated by the data promptly.
We shall now address concerns raised with respect to the specific information questions posed to the three different groups (interstate pipelines, sellers of natural gas, and local distribution companies) that serve California natural gas markets. As discussed below, the Commission is revising some of the questions, to address the concerns raised in the comments. In this connection, the May 18 order did not include the specific period for which the questions request data but merely stated “period —to—”. Consistent with the discussion above limiting the reporting period to six months at least initially, that phrase has been changed to read “August 1, 2001, to January 31, 2002” in each of the questions.
Proposed Question 1 addressed to interstate pipelines asked that the pipelines provide, on a daily basis starting on August 1, 2001, certain information for each contract for transportation to the California border. The Public Utilities Commission of the State of California (CPUC) urged that this daily information should be provided for the period starting January 1, 1999 through the effective date of the order, with subsequent quarterly reports for future days. The Commission will not require pipelines to supply the information requested in Question 1 for periods before August 1, 2001. The Commission is seeking to minimize the burden of these reporting requirements, consistent with achieving the purpose of the reporting requirement of monitoring what is currently occurring in California to determine what actions can or should be taken on a prospective basis. For this purpose, detailed information concerning transportation contracts in effect during past periods is unnecessary.
Question 1, as proposed, also requests pipelines to identify the daily volumes scheduled by, and delivered to each shipper for the period August 1, 2001 to January 31, 2002. CPUC asserts that pipelines should also be required to report daily nominated volumes by shipper to provide corroboration on reported information between pipelines and sellers. It also urges that prices should be reported on an $$/MMBtu basis, and the term and effective date of each contract should be provided as well.
The Commission agrees with CPUC that daily nominated volumes should be reported to ensure that the Commission can cross-check the information supplied. The Commission will also require that prices be reported on an $$/MMBtu basis to ensure consistency of answers, and require the pipeline to report the term and effective date of each contract.
Independent Petroleum Association of America (IPAA) requests that pipelines be required to report what gas actually flowed the previous day. IPAA contends that this information is important because nominated capacity which has not been scheduled or confirmed appears as capacity already used and, as such, effectively takes that capacity off the market. Question 1, as revised by the Commission in response to the CPUC, will provide this information on a contract-by-contract basis for the August 2001 through January 2002 period, since pipelines must report daily nominated, scheduled, and
Commenters requested a number of clarifications concerning the proposed questions addressed to “Sellers of Natural Gas to the California Market”, including what sales are intended to be covered by the proposed questions. The Commission clarifies the questions as discussed below.
Proposed Question 1 requires gas sellers to identify any affiliation they have with interstate and intrastate pipelines or LDCs. One commenter
The Commission adopts Question 1 as proposed and will require sellers to identify their affiliations with all pipelines and LDCs wherever located. A primary purpose of the reporting requirement is to determine what proportion of sales in California are subject to the Commission's jurisdiction. The Commission has jurisdiction over all sales for resale of domestic gas by gas sellers affiliated with pipelines or LDCs, regardless of where they are located. Therefore, all such affiliations are relevant to the Commission's inquiry.
Proposed Question 2 required sellers to provide certain information concerning “each sales contract under which the gas is physically delivered at or into the California market.” Proposed Question 5 required sellers to provide certain information concerning each “gas purchase contract under which the gas is physically delivered at or into the California market.”
A number of commenters question the type of sales and purchase contracts that are covered by these questions, namely, whether the Commission is seeking information only regarding sales and purchases when the gas is delivered at the California border or inside California, or whether the questions also cover sales and purchases when
The Commission clarifies that in Question 2 it is only requiring sellers to report information with respect to sales they make when the gas is delivered at points on the California border or within California. When a sales contract requires deliveries at some point outside California, the seller cannot be expected to know in all cases whether the gas is ultimately destined for California. Therefore, the Commission recognizes that sellers making sales in which the deliveries takes place outside California should not be required to report those sales.
Proposed Question 5
Commenters also seek clarification on whether the Commission intends sellers not only to report information regarding the sale, but also to report the details of the transactions in which they acquired the gas being sold.
The Commission's proposed Question 2, among other things, requests sellers of natural gas to include in their responses the names of the buyers and whether such entities are energy marketers, local distribution companies, or end users. Several commenters raised a concern about identifying the buyer by name with a suggestion to permit respondents to code buyer identities.
The name of the buyer is necessary because without it the Commission will not be in a position to analyze the data, especially where the same gas may be sold a number of times at the California border. The Commission does recognize the commercial sensitivity of a seller's identification of its purchasers. For this reason, as discussed above, the Commission has found that such information is exempt from public disclosure. Thus the concern of the commenters about confidentiality has been addressed because the information is entitled to protection in accordance with the rule in
The Commission's proposed Question 2, among other things, also requests that sellers of natural gas identify whether the buyer is affiliated with a pipeline. Several commenters assert that sellers do not have access to the buyer's affiliate information and therefore should not be placed in the position of having to research and report the pipeline affiliation or industry “category”.
El Paso Merchant Energy, LP (Merchant) suggests that the Commission should include collection of data on the financial market as well as the physical market. The Commission believes that, for the purpose that it is instituting the reporting requirement, data is only necessary concerning sales in which actual physical deliveries are made at the California border or within California. Therefore, the Commission will not require information about sales where there are no physical deliveries. However, if Merchant wishes to furnish such information covering its own transactions, the Commission would accept such information.
The Commission is also modifying proposed Questions 2(e) and 5(e) with respect to the price paid so respondents shall answer “whether the price is fixed or indexed (identify the index).” This makes these questions similar to Question 4 (e) to LDCs which also asks for price information.
Proposed Question 3 requires the seller of natural gas to state the transportation component and the gas component of the sales price, and if these are not specifically indicated in the contract, the seller is to provide a valuation of each component, together with an explanation of how that was determined. Some commenters point out that sales contracts typically provide only for a single, overall delivered price. The seller and purchaser never agree on separate prices for the transportation and commodity components. Commenters therefore argued that this question is flawed, since it would require each seller to make an after-the-fact “artificial” and “subjective” valuation of each component since there is no established standard for dividing the delivered price into separate components
If the seller's sales contract does specify the transportation component of the price, then the seller should report the amount so specified. If the sales contract does not specify the transportation component but only includes an overall price, then the seller should report the transportation cost it incurred in moving the gas from the point where it purchased the gas to the point where it delivered the gas to its buyer and how it determined that amount. If the seller delivered the gas at the same point where it purchased the gas, then there is no transportation element in the sale and the seller should respond “n.a.”
The Commission's proposed Question 4 requires that sellers of natural gas provide information concerning their contracts for transportation to the California border, including volumes nominated and volumes scheduled by the pipeline. Several commenters state that they do not maintain nomination
The Commission has determined to eliminate Question 4 in its entirety from the reporting requirements for sellers of natural gas. The questions to interstate pipelines provide the Commission with the same information, and therefore there is no need for a duplicative question to gas sellers.
The Commission's proposed Question 5, among other things, requests that sellers of natural gas identify the pipeline associated with a particular gas purchase contract. Sempra Energy Trading Corp. seeks clarification that the Commission intends respondents to identify the interstate pipeline on which gas is shipped either to the California border or to a delivery point within California. Sempra Energy Trading Corp. states that some purchase contracts may specify a single pipeline on which the sales transaction takes place while other gas purchase contracts may indicate more than one pipeline, i.e., the pipeline upstream of the point of delivery and the pipeline downstream of the point of delivery.
The Commission will grant the requested clarification and will require respondents to identify the pipeline upstream of the point where the gas is delivered to them and the pipeline the respondents use to the take the gas away from the delivery point responding to Question 5(b).
Natural Gas Supply Association requests that the Commission clarify Question 5 to determine whether volumes will be reported on a daily or other basis. The Commission will grant the requested clarification and require respondents to report volumes on a daily basis.
The Commission is also adding to proposed Question 5 a requirement that gas sellers identify the entity from whom they purchase the gas under each gas purchase contract.
In order to ensure that there is no misunderstanding, the Commission intends that intrastate pipelines and Hinshaw pipelines should respond to the reporting requirement either as sellers of natural gas, or as LDCs, depending upon which group they fall under.
The Commission's proposed LDC Question 1, among other things, requests that LDCs provide information concerning system gas sales and transportation requirements (i.e., contract demand and daily demands) delineated by core, non-core, electric generation and non-utility loads. Question 1 also requests a breakdown of these loads by type of service (
Southern California Gas Company and San Diego Gas & Electric Company (Sempra Utilities) states that daily estimated demand can be provided. However, Sempra Utilities contends that concepts such as “firm” and “interruptible” and “contract demands” for sales and transport are inapplicable to the services currently provided by them and therefore that information is not available. If Sempra Utilities use different terms for the types of services identified in the question such as firm and interruptible, then they should report the required information in the terms they use. To the extent customers do not have contract demands, then Sempra Utilities may respond to questions about contract demands by setting forth any contractual terms that limit a customer's usage.
The Commission's proposed Question 3 seeks information on a daily basis concerning each contract the LDC has with a sales customer. The requested information includes contract demand, term, volume and price for each sales contract. The Sempra Utilities state that they do not have individual contracts with their approximately 6 million core customers and that they only meter those core customers on a monthly, rather than a daily, basis. Sempra Utilities suggest that even on a monthly basis, information concerning each individual core customer's consumption would not be useful to the Commission. Sempra Utilities assert that the information to be provided in response to Question 1 should be sufficient for the Commission.
Question 1 requests only that the LDC provide its system's gas sales and transportation requirements solely by customer class and does not ask for information concerning volumes sold or prices charged. Question 3, by contrast, requests information relative to sales contracts with individual customers, including volumes sold and prices charged. The Commission recognizes that the Sempra Utilities do not have contracts with, or daily information concerning consumption by their individual core customers. Therefore, Sempra Utilities may provide the information requested by Question 3 for the core customer class as a whole, without breaking the information down by individual core customer. The Sempra Utilities may also respond to the question concerning contract demands as it relates to core customers by stating “N/A.”
Sempra Utilities have not stated that they do not have contracts with the individual customers in their other customer classes, including non-core, electric generation, and non-utility loads. Nor have they stated they do not meter such customers on a daily basis. Therefore, there appears no reason why Sempra Utilities cannot provide all the information requested by Question 3 with respect to all individual customers other than the core customers.
Proposed Question 4 asks LDCs for information concerning each of their gas purchase contracts. Included in the information requested is whether the price in each gas purchase contract is fixed or indexed. Sempra Utilities state that the Commission has not requested other gas sellers to provide such information about their gas purchase contracts, and they assert that LDCs should not be required to provide more information than other gas sellers.
The Commission will adopt this question as proposed. In this order the Commission is modifying the questions to gas sellers to require them to state whether the price in their contracts is indexed. Therefore LDCs are not being treated differently with respect to this question.
The Commission's proposed Question 5 seeks daily information identifying, by interstate pipeline, the type and quantity of transportation service each LDC system has under contract. Additionally, Question 5 requests that each LDC provide, at each receipt point, maximum peak day design capacity, the
The Commission is modifying this question to also require respondents to provide daily nominated capacity at each point.
The Commission's proposed Question 6 seeks daily storage information including capacity and deliverability rights, daily storage balances, and injections and withdrawals. Question 6 also seeks this information by each storage facility. The Sempra Utilities state that information is not available by storage field but that it can provide system-wide daily storage balances, injections and withdrawals.
The Commission will grant the requested clarification. Responders can provide the daily storage information on an aggregated basis, without separating the data by storage facility.
The Commission's proposed Question 7 requires the California LDCs to provide information on how much of their system's supply was gas supply from intrastate production sources. The question further requires LDCs to identify the source, volume, receipt point and price. The Sempra Utilities state that they can provide the information requested except that they do not have pricing information and therefore cannot provide it.
The question requires information with regard to all gas flowing on the LDCs' system, not only the gas they purchase. The Commission recognizes that the LDCs will not have pricing information for gas that they may transport on behalf of others. However, for gas that the LDCs purchase, they should have pricing information, and that information should be reported. As discussed above, the Commission will treat such pricing information as confidential.
The following collection of information has been submitted to the Office of Management and Budget (OMB) for review under § 3507(d) of the Paperwork Reduction Act of 1995, 44 U.S.C. 3507(d) and OMB's emergency processing procedures at 5 CFR 1320.13 (2000). The Commission has requested emergency processing because of the unanticipated events that have occurred in California with respect to natural gas prices that have raised serious concerns.
Estimated Annual Burden:
Information Collection Costs:
Average cost per respondent = $25,096.00.
OMB's regulations
The requirements conform to the Commission's plan for efficient information collection, communication, and management within the natural gas industry. The Commission has assured itself, by means of internal review, that there is specific, objective support for the burden estimates associated with the information requirements.
For submitting comments concerning the collection of information, please refer to the Commission's
All interstate natural gas pipelines that deliver gas at points on the California border or within California, and sellers of natural gas at points on the California border or within California, and Local Distribution
Answers to all questions below that require a statement of volumes should set forth the requested volumes on an MMBtu basis.
1. On a daily basis for the period August 1, 2001 to January 31, 2002, please provide the following information for each contract for transportation to the California border:
Along with the hard copy response, please provide a CD-ROM containing the response to this question. Please provide this information in Excel version 97 or 2000 or comma separated value (CSV) format.
2. For the period August 1, 2001 to January 31, 2002, please provide the following information for each capacity release transaction for transportation to the California border:
Along with the hard copy response, please provide a CD-ROM containing the response to this question. Please provide this information in Excel version 97 or 2000 or comma separated value (CSV) format.
3. On a daily basis for the period August 1, 2001 to January 31, 2002, please provide the following system information:
Along with the hard copy response, please provide a CD-ROM containing the response to this question. Please provide this information in Excel version 97 or 2000 or comma separated value (CSV) format.
4. On a daily basis for May 1999 and May 2000, please provide the following system information:
Along with the hard copy response, please provide a CD-ROM containing the response to this question. Please provide this information in Excel version 97 or 2000 or comma separated value (CSV) format.
1. State whether the seller is affiliated with an interstate or intrastate natural gas pipeline company or local distribution company, and, if so, give the name and address the affiliated company.
2. On a daily basis for the period August 1, 2001 to January 31, 2002, please provide the following information for each contract in which you sold natural gas and the gas is physically delivered at points on the California border or in California:
Along with the hard copy response, please provide a CD-ROM containing the response to this question. Please provide this information in Excel version 97 or 2000 or comma separated value (CSV) format.
3. For each sales contract, identify separately the transportation component and the gas commodity component of the price. If the sales contract specifies the transportation component of the price, the seller shall report that amount. If the sales contract only includes an overall price, then the seller shall report the transportation cost it incurred in moving the gas from the point where it purchased the gas to the point where it sold the gas and how it determined that amount. If the sale was made at the same point where the gas was purchased, and there is no transportation element in the sale, the seller shall respond “n.a.”
Along with the hard copy response, please provide a CD-ROM containing the response to this question. Please provide this information in Excel version 97 or 2000 or comma separated value (CSV) format.
4. For the period August 1, 2001 to January 31, 2002, please provide the following information on a daily basis for each of your gas purchase contracts associated with the sales contracts you identified in response to Question 2:
Along with the hard copy response, please provide a CD-ROM containing the response to this question. Please provide this information in Excel version 97 or 2000 or comma separated value (CSV) format.
1. Provide your system's gas sales and transportation requirements, (i.e, contract demands and daily demands) by core, non-core, electric generation, and non-utility loads. Provide a break down of these demands by type of service (e.g., sales and transportation) and quality of service(firm/interruptible).
Along with the hard copy response, please provide a CD-ROM containing the response to this question. Please provide this information in Excel version 97 or 2000 or comma separated value (CSV) format.
2. On a daily basis for the period August 1, 2001 to January 31, 2002, please provide the following information for each contract the local distribution company has with a transportation customer:
Along with the hard copy response, please provide a CD-ROM containing the response to this question. Please provide this information in Excel version 97 or 2000 or comma separated value (CSV) format.
3. On a daily basis for the period August 1, 2001 to January 31, 2002, please provide the following information for each contract the local distribution company has with a sales customer:
Along with the hard copy response, please provide a CD-ROM containing the response to this question. Please provide this information in Excel version 97 or 2000 or comma separated value (CSV) format.
4. On a daily basis for the period August 1, 2001 to January 31, 2002, please provide the following information for each gas purchase contract:
Along with the hard copy response, please provide a CD-ROM containing the response to this question. Please provide this information in Excel version 97 or 2000 or comma separated value (CSV) format.
5. On a daily basis for the period August 1, 2001 to January 31, 2002, please provide by interstate pipeline the type and quantity of transportation service your system has under contract. At each receipt point, provide maximum peak day design capacity, the daily maximum flowing capacity, the daily nominated capacity and the daily scheduled volumes of the local distribution system.
Along with the hard copy response, please provide a CD-ROM containing the response to this question. Please provide this information in Excel version 97 or 2000 or comma separated value (CSV) format.
6. On a daily basis for the period August 1, 2001 to January 31, 2002, please provide on a system-wide basis your storage service rights i.e., capacity and deliverability rights. Additionally, provide daily storage balances, injections and withdrawls.
Along with the hard copy response, please provide a CD-ROM containing the response to this question. Please provide this information in Excel version 97 or 2000 or comma separated value (CSV) format.
7. On a daily basis for the period August 1, 2001 to January 31, 2002, please provide how much of your system's gas supply was from intrastate production sources. Separately identify the sources, volumes, receipt points, and prices. Include the total system supply in your response.
Along with the hard copy response, please provide a CD-ROM containing the response to this question. Please provide this information in Excel version 97 or 2000 or comma separated value (CSV) format.
8. Provide a summary of your system's gas purchases in the following categories:
by month for each of the last three years in the following format:
Along with the hard copy response, please provide a CD-ROM containing the response to this question. Please provide this information in Excel version 97 or 2000 or comma separated value (CSV) format.
This constitutes notice, in accordance with 18 CFR 385.2201(h), of the receipt of exempt and prohibited off-the-record communications.
Order No. 607 (64 FR 51222, September 22, 1999) requires Commission decisional employees, who make or receive an exempt or a prohibited off-the-record communication relevant to the merits of a contested on-the-record proceeding, to deliver a copy of the communication, if written, or a summary of the substance of any oral communication, to the Secretary.
Prohibited communications will be included in a public, non-decisional file associated with, but not part of, the decisional record of the proceeding. Unless the Commission determines that the prohibited communication and any responses thereto should become part of the decisional record, the prohibited off-the-record communication will not be considered by the Commission in reaching its decision. Parties to a proceeding may seek the opportunity to respond to any facts or contentions made in a prohibited off-the-record communication, and may request that the Commission place the prohibited communication and responses thereto in the decisional record. The Commission will grant such requests only when it determines that fairness so requires. Any person identified below as having made a prohibited off-the-record communication should serve the document on all parties listed on the official service list for the applicable proceeding in accordance with Rule 2010, 18 CFR 385.2010.
Exempt off-the-record communications will be included in the decisional record of the proceeding, unless the communication was with a cooperating agency as described by 40 CFR 1501.6, made under 18 CFR 385.2201(e)(1)(v).
The following is a list of exempt and prohibited off-the-record communications received in the Office of the Secretary within the preceding 14 days. The documents may be viewed on the Internet at http://www.ferc.fed.us/online/rims.htm (call 202-208-2222 for assistance).
Environmental Protection Agency.
Notice.
Under section 10(a)(2) of Public Law 92-423, “The Federal Advisory Committee Act,” notice is hereby given that a meeting of the National Drinking Water Advisory Council established under the Safe Drinking Water Act, as amended (42 U.S.C.S300f
The purpose of the meeting is for the Council to deliberate on the recommendations from the Arsenic Cost Working Group. The Arsenic Cost Working Group, comprised of nationally recognized technical experts, will have completed their review of the cost of compliance estimates associated with the January 22, 2001 Arsenic Rule. The Council will also provide its recommendations on the Arsenic Cost Review to the Agency. Oral statements from the public will be taken if time permits. Written statements from the public will also be accepted.
The meetings will be held on August 22 and 30, 2001 in Washington, DC
Following the January 22, 2001
The Council encourages the hearing of outside statements and will allocate, if time permits, a portion of the meeting for this purpose. Any outside parties interested in presenting an oral statement should petition the Council by telephone at (202) 260-9194, before August 20, 2001. Requests made after this date will not be accepted. Oral statements will be limited to five minutes per speaker and no more than 30 minutes total.
Any person who wishes to file a written statement can do so before or after a Council meeting. Written statements received prior to the meeting will be distributed to all members of the Council before any final discussion or vote is completed. Any statements received after the meeting will become part of the permanent meeting file and will be forwarded to the Council members for their information.
Members of the public that would like to attend the meeting, present an oral statement, or submit a written statement, should contact Ms. Janet Pawlukiewicz, Designated Federal Officer, National Drinking Water Advisory Council, U.S. EPA, Office of Ground Water and Drinking Water (4601), 1200 Pennsylvania Avenue, NW., Washington, DC 20460. The telephone number is (202) 260-9194 or E-Mail
Environmental Protection Agency (EPA).
Notice.
EPA today notices its intent to disapprove the State of New Jersey's omission of six waters on its 1998 Clean Water Act Section 303(d). EPA is proposing to add the following six waters to New Jersey's 1998 Section 303(d) list: Ackerman's Creek, Berry's Creek, Birch Swamp Creek, Capoolony Creek, Edmund's Creek, and the Singac River. EPA solicits public comment on the addition of the above six waterbodies to New Jersey's Clean Water Act Section 303(d) list.
Comments on the proposed action must be submitted to EPA on or before August 17, 2001.
Copies of the relevant supporting documents may be obtained by writing to Ms. Rosella O'Connor, U.S. Environmental Protection Agency Region 2, 290 Broadway, 24th Floor, New York, New York 10006-1866, oconnor.rosella@epamail.epa.gov, or by calling (212) 637-3823.
The administrative record containing background technical information is on file and may be inspected at the U.S. EPA, Region 2 office between the hours of 8 a.m. and 5:30 p.m., Monday through Friday, except holidays. Arrangements to examine the administrative record may be made by contacting Ms. Rosella O'Connor.
Ms. Rosella O'Connor, telephone number (212) 637-3823.
Section 303(d) of the Clean Water Act (CWA) and EPA's implementing regulations at 40 CFR 130.7, require states and territories to: develop lists of water-quality limited waters still requiring Total Maximum Daily Loads (TMDLs); establish a priority ranking of these waters; identify pollutants causing their impairment; and identify waters targeted for TMDL development over the next two (2) years. TMDLs include a determination of pollutant loadings compatible with achievement of applicable state water quality standards. State 303(d) lists and TMDLs are submitted to the EPA for approval or disapproval.
Under 40 CFR 130.7(b)(1), water quality-limited segments are not required to be listed on a State's Section 303(d) list where: effluent limitations required by the CWA; more stringent effluent limitations required by State or local authority; or, other pollution control requirements required by State, local or federal authority, are stringent enough to implement applicable water quality standards. Waters may be removed from the 303(d) list if any of the listed control actions result in meeting water quality standards by the next listing cycle. If water quality standards are not expected to be achieved by the next listing cycle, through implementation of other required controls, it is appropriate for waters to remain on the 303(d) list to ensure that implementation of the required controls and progress towards compliance with applicable water quality standards occur.
On September 15, 1998, the State of New Jersey (“New Jersey”) submitted its 1998 CWA Section 303(d) list to EPA for review and approval. On October 8, 1998, EPA approved New Jersey's CWA Section 303(d) list. This list included approximately 1,048 water-quality limited segments. This list was challenged in a lawsuit commenced in the Federal District Court for the District of New Jersey, entitled
In preparing its 1998 CWA Section 303(d) list, New Jersey relied upon several sources of information, including the EPA approved CWA Section 304(l) lists. Under CWA Section 304(l), states were required to submit to EPA several lists, including, pursuant to Section 304(l)(A)(i)—a list of water bodies the state does not expect to achieve State water quality standards due to discharges of toxic pollutants from point or nonpoint sources (the “mini list”). In 1993, EPA approved New Jersey's CWA Section 304(l) lists. A notice announcing EPA's final approval of New Jersey's 304(l) lists, including New Jersey's mini list, was published in the
The six waters that EPA is proposing to add originate from New Jersey's CWA Section 304(l) mini list. With the exception of these six waters, the remaining waters listed under the CWA Section 304(l) mini list were included in New Jersey's 1998 CWA Section 303(d) list.
Five of the six waters: Ackerman's Creek, Berry's Creek, Birch Swamp Brook, Capoolony Creek, and Edmund's Creek were found to be potentially impaired due to contamination from adjacent hazardous waste sites listed under the National Priority List. The Singac River was identified by New Jersey as requiring additional water-quality based controls for whole effluent toxicity.
EPA is proposing to disapprove New Jersey's omission of six waters from its 1998 CWA Section 303(d) list. EPA is proposing to add the six waters (shown in Table 1) to New Jersey's 1998 Section 303(d) list. Consistent with EPA's regulations, 40 CFR part 130.7(b)(4), the pollutants potentially causing impairments of the listed waters are identified in Table 1. The toxic pollutants identified for the listed waters (with the exception of the Singac River) are based on data collected at the adjacent hazardous waste sites. For the Singac River, specific toxic pollutants have yet to be identified.
CWA Section 303(d)(1) and EPA's regulations at 40 CFR 130.7(b)(4) require States to prioritize waters on their Section 303(d) lists for TMDL development. EPA is proposing that a ranking of low priority be assigned to the six waters. A low priority is appropriate because of the control actions that are currently underway for the five waterbodies (Ackerman's Creek, Berry's Creek, Birch Swamp Brook, Capoolony Creek, Edmund's Creek) that have been listed due to potential contamination from adjacent hazardous waste sites. These waters should be restored upon implementation of the remediation plans for the sites impacting the waters. EPA believes that any TMDL that is developed for these waters will rely on the remediation plans, required under 40 CFR § 300.430 for the hazardous waste sites. EPA expects that New Jersey will track the progress of remediation plans for the relevant hazardous sites and the water quality of the above five waters. In the case of the Singac River, the original listing under CWA Section 304(l) was not specific and there is some uncertainty as to the specific toxic pollutants and the degree of impairment. EPA recommends that New Jersey review and evaluate existing and readily available data and information regarding the presence of toxic pollutants in the Singac River to determine the specific toxic pollutants and degree of impairment.
EPA is soliciting public comment on the proposed addition and priority ranking of Ackerman's Creek, Berry's Creek, Birch Swamp Creek, Capoolony Creek, Edmund's Creek, and the Singac River to New Jersey's 1998 CWA Section 303(d) list.
Pursuant to the provisions of the “Government in the Sunshine Act” (5 U.S.C. 552b), notice is hereby given that at 3:00 p.m. on Monday, July 30, 2001, the Board of Directors of the Federal Deposit Insurance Corporation met in closed session to consider matters relating to the Corporation's resolution activities.
In calling the meeting, the Board determined, on motion of Director Ellen S. Seidman (Director, Office of Thrift Supervision), seconded by Director John D. Hawke, Jr. (Comptroller of the Currency), concurred in by Acting Chairman John M. Reich, that Corporation business required its consideration of the matters on less than seven days' notice to the public; that no earlier notice of the meeting was practicable; that the public interest did not require consideration of the matters in a meeting open to public observation; and that the matters could be considered in a closed meeting by authority of subsections (c)(6), (c)(8), (c)(9)(A)(ii), and (c)(9)(B) of the “Government in the Sunshine Act” (5 U.S.C. 552b(c)(6), (c)(8), (c)(9)(A)(ii), and (c)(9)(B)).
The meeting was held in the Board Room of the FDIC Building located at 550-17th Street, NW., Washington, DC.
Federal Election Commission.
999 E Street, NW., Washington, DC.
This meeting will be closed to the public.
Mr. Ron Harris, Press Officer, Telephone: (202) 694-1220.
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The application also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States. Additional information on all bank holding companies may be obtained from the National Information Center website at www.ffiec.gov/nic/.
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than August 27, 2001.
Board of Governors of the Federal Reserve System, July 27, 2001.
Section 7A of the Clayton Act, 15 U.S.C. 18a, as added by Title II of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, requires persons contemplating certain mergers or acquisitions to give the Federal Trade Commission and the Assistant Attorney General advance notice and to wait designated periods before consummation of such plans. Section 7A(b)(2) of the Act permits the agencies, in individual cases, to terminate this waiting period prior to its expiration and requires that notice of this action be published in the
The following transactions were granted early termination of the waiting period provided by law and the premerger notification rules. The grants were made by the Federal Trade Commission and the Assistant attorney General for the Antitrust Division of the Department of Justice. Neither agency intends to take any action with respect to these proposed acquisitions during the applicable waiting period.
Sandra M. Peay or Parcellena P. Fielding Contact Representatives Federal Trade Commission, Premerger Notification Office, Bureau of Competition, Room 303, Washington, D.C. 20580, (202) 326-3100.
Section 7A of the Clayton Act, 15 U.S.C. 18a, as added by Title II of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, requires persons contemplating certain mergers or acquisitions to give the Federal Trade Commission and the Assistant Attorney General advance notice and to wait designated periods before consummation of such plans. Section 7A(b)(2) of the Act permits the agencies, in individual cases, to terminate this waiting period prior to its expiration and requires that notice of this action be published in the
The following transactions were granted early termination of the waiting period provided by law and the premerger notification rules. The grants were made by the Federal Trade Commission and the Assistant Attorney General for the Antitrust Division of the Department of Justice. Neither agency intends to take any action with respect to these proposed acquisitions during the applicable waiting period.
Sandra M. Peay or Parcellena P. Fielding, Contact Representatives, Federal Trade Commission, Premerger Notification Office Bureau of Competition, room 303, Washington, DC, 20580 (202) 326-3100.
By Direction of the Commission.
Pursuant to the Federal Advisory Committee Act, the Department of Health and Human Services announces the following advisory committee meeting.
Its Subcommittee on Privacy and Confidentiality monitors major developments in health information privacy and confidentiality on behalf of the full Committee and makes recommendations to the full Committee and assists the Department on implementation of the health information privacy provisions of HIPAA.
The regulation and further information about it can be found on the web site of the Office for Civil Rights, at
At this hearing those who provide health care, those who pay for it (such as health plans), and those who use health information (such as the research and public health communities) and members of the public will have an opportunity to address specific issues pertaining to the implementation of the regulation.
The hearing will seek information about practical issues in implementation of the regulation, and suggestions about possible solutions for such issues. The Subcommittee particularly seeks detailed information about the following four issues: (1) The regulation's requirements for consent in order to use information for treatment, payment, and health care operations, (2) the regulation's requirements that those covered by it must make reasonable efforts to limit use and disclosure of, and requests for, protected health information to the minimum necessary to accomplish the intended purpose of the use, disclosure, or request; (3) the effects of the regulation on research (both research in which treatment is given and records-based research), and (4) the regulation's provisions for use and disclosure of health information for marketing.
The format will include one or more invited panels on each of the issues and time for questions and discussion. The Subcommittee particularly seeks focused, detailed analyses and description, with examples, of the effect the regulation is expected to have, based on early implementation efforts and preliminary assessments of impact.
In addition to the panels that will be invited to address these issues, members of the public who would like to make a brief (3 minutes or less) oral comment on one or more of the specified issues during the hearing will be placed on the agenda as time permits. To be included on the agenda, please contact Marietta Rawlinson (301) 458-4524, by e-mail at mrawlinson@cdc.gov, or postal address at NCHS, Presidential Building, Room 1100, 6525 Belcrest Road, Hyattsville, Maryland 20782 by August 7, 2001. Persons wishing to submit written testimony only (no more than 4-5 double-spaced typewritten pages) should endeavor to submit it by that date. Unfilled slots for oral testimony will also be filled on-site as time permits. Please consult Ms. Rawlinson for further information about these arrangements. Additional information about the hearing will be provided on the NCVHS website at
Information about the committee, including summaries of past meetings and a roster of committee members, is available on the Committee's website at
Part A, (Office of the Secretary), of the Statement of Organization, Functions, and Delegations of Authority for the Department of Health and Human Services, Chapter AA “Office of the Secretary” as last amended at 60 FR 52403, dated October 6, 1995; Chapter ABC “Office of the Deputy Under Secretary for Intergovernmental Affairs” as last amended at 61 FR 24311-12, dated May 14, 1996; and Chapter AC “Office of Public Health and Science” as last amended at 65 FR 37137, dated June 13, 2000 are being amended to reflect the transfer of the Regional Health Administrators (ADA 1-X) from the Office of the Deputy Under Secretary for Intergovernmental Affairs (ABC) to the Office of Public Health and Science. The changes are as follows:
I. Under Chapter ABC, “Office of the Deputy Under Secretary for Intergovernmental Affairs,” make the following changes:
A. Under Paragraph AD.10 Organization, revise as follows:
AD.10 Organization. The Office of the Regional Director is under the direction and control of the Regional Director, who reports directly to the Secretary and Deputy Secretary through the Director for Intergovernmental Affairs, and consists of the Regional Director (AD 1-X).
B. Under Paragraph AD.20 Function, make the following changes:
1. Delete the last sentence under paragraph A.
2. Delete paragraph B. The Regional Health Administrator (ADA (1-X) in its entirety.
II. Under Chapter AC, “Office of Public Health and Science,” make the following changes:
A. Under Paragraph AC.10 Organization, insert the following paragraph, after paragraph L.
M. Office of the Regional Health Administrator (ACD 1-X).
B. Under Paragraph 20. Functions, insert the following paragraph after paragraph (12):
(13) provides oversight and directions to the Regional Health Administrators (1-X).
C. Under Paragraph 20. Functions, insert the following after Paragraph 20, subparagraph L:
M. Regional Health Administrator (ACD1-X)—Reports to the Assistant Secretary for Health. Receives professional guidance from the ASH. Participates in policy development and implementation; directs and coordinates regionally based programs of OPHS, including the offices of Emergency Preparedness, Minority Health, Women's Health and Population Affairs. Develops regional goals and objectives consistent with the needs of the region and in conformity with the national health priorities and objectives and Departmental plans and programs. Serves as the principal official in the assigned area of jurisdiction to provide oversight and coordination for Public Health Service programs. Sustains regular communication with State public health, substance abuse, and mental health agencies as well as other professional and community-based organizations to assist the Assistant Secretary for Health, and PHS Operating Divisions in the formulation, development, analysis and evaluation of PHS OPDIV field programs and cross cutting Departmental initiatives in public health. Develops plans for emergency preparedness and response and directs all Departmental health related activities necessary to ensure continuity of essential functions within the Region in case of an emergency due to enemy action or natural disaster.
Office of the Secretary, HHS.
Notice.
Notice is hereby given that the Office of Research Integrity (ORI) and the Assistant Secretary for Health have taken final action in the following case:
Specifically, PHS finds that Dr. Pandurangi plagiarized the images of data in Figures 2A and 2B and related text in supplemental material he submitted in connection with National Heart, Lung, and Blood Institute (NHLBI), NIH, grant application 1 R01 HL62517-01A2, Myocardial Viability by AII Receptor-99mTc Conjugates,” in which he was the principal investigator. Specifically, Figures 2A and 2B and related text were plagiarized from Figures 7C and 7D of the following journal publication: Gibson, R., Beauchamp, H., Fioravanti, C., Brenner, N., and Burns, H.D. “Receptor Binding Radiotracers for the Angiotensin II Receptor: Radioiodinated [Sar
In addition, Dr. Pandurangi falsified the text in the supplement to his NIH grant application by claiming that Figures 2A and 2B represented a compound he had developed. Namely, he claimed that Figure 2A represented radioionated compound
Dr. Pandurangi has entered into a Voluntary Exclusion Agreement (Agreement) with PHS in which he has voluntarily agreed:
(1) To exclude himself from any contracting or subcontracting with any agency of the United States Government and from eligibility for, or involvement in, nonprocurement transactions (e.g.,
(2) that for an additional period of three (3) years following the one-year period of exclusion set forth above, any institution that submits an application for PHS support for a research project on which Dr. Pandurangi's participation is proposed or which uses him in any capacity on PHS supported research, or which submits a report of PHS supported research in which Dr. Pandurangi is involved, must concurrently submit to PHS and ORI (a) a plan for supervision of his duties during the particular PHS supported project at issue, which must be designed to ensure the scientific integrity of his research contribution; and (b) a certification that the data provided by Dr. Pandurangi are based on actual experiments or are otherwise legitimately derived, and that the data, procedures, and methodology are accurately reported in the application or research project; and
(3) to exclude himself from serving in any advisory capacity to PHS, including but not limited to service on any PHS advisory committee, board, and/or peer review committee, or as a consultant for a period of four (4) years, beginning on July 17, 2001.
Director, Division of Investigative Oversight Office of Research Integrity 5515 Security Lane, Suite 700 Rockville, MD 20852 (301) 443-5330.
Centers for Medicare & Medicaid Services, HHS.
Notice.
In accordance with section 10(a) of the Federal Advisory Committee Act (5 U.S.C. App. 2), this notice announces that the Practicing Physicians Advisory Council (the Council) has been rechartered for a 2-year period, through June 12, 2003. This notice also invites all organizations representing physicians to submit nominees for membership on the Council. There are currently three vacancies on the Council.
Nominations will be considered if we receive them at the appropriate address, provided below, no later than 5 p.m., E.S.T., on August 13, 2001.
Mail or deliver nominations to the following address: Centers for Medicare & Medicaid Services, Center for Medicare Management, Office of Professional Relations, Attention: Paul Rudolf, MD, JD, Executive Director, Practicing Physicians Advisory Council, Room 435H, Hubert H. Humphrey Building, 200 Independence Avenue, SW, Washington, DC 20201
Paul Rudolf, MD, JD, Executive Director, Practicing Physicians Advisory Council, (202) 690-7418.
Section 4112 of the Omnibus Budget Reconciliation Act of 1990 (Public Law 101-508) added a new section 1868 to the Social Security Act (the Act), which established the Practicing Physicians Advisory Council (the Council). The Council advises the Secretary of the Department of Health and Human Services (the Secretary) on proposed regulations and manual issuances related to physicians' services. An advisory committee created by the Congress, such as this one, is subject to the provisions of the Federal Advisory Committee Act (5 U.S.C. App. 2).
Section 1868(a) of the Act requires that the Council consist of 15 physicians, each of whom must have submitted at least 250 claims for physicians' services under Medicare in the previous year. At least 11 Council members must be physicians as defined in section 1861(r)(1) of the Act; that is, State-licensed physicians of medicine or osteopathy. The other four Council members may include dentists, podiatrists, optometrists, and chiropractors.
The Council must include both participating and nonparticipating physicians, as well as physicians practicing in rural and underserved urban areas. In addition, section 1868(a) of the Act provides that nominations to the Secretary for Council membership must be made by medical organizations representing physicians.
This notice is an invitation to all organizations representing physicians to submit nominees for membership on the Council. Current members whose terms expired on February 28, 2001 will be considered for reappointment, if renominated, subject to the Department's administrative guidelines for advisory committee management. Candidates nominated in December 2000 are still being considered for the vacant Council seats. With the changes in Administration and the government-wide freeze on new appointments it has been necessary to extend and reopen the nomination process to identify additional candidates for seats on the Council. Therefore, the Centers for Medicare & Medicaid Services will be accepting additional nominees to the Council if they are received by the close of business August 13, 2001. The Secretary will appoint new members to the Council from among those candidates determined to have the expertise required to meet specific agency needs and in a manner to ensure appropriate balance of membership.
Each nomination must state that the nominee has expressed a willingness to serve as a Council member and must be accompanied by a short resume or description of the nominee's experience. To permit an evaluation of possible sources of conflict of interest, potential candidates will be asked to provide detailed information concerning financial holdings, consultant positions, research grants, and contracts.
Section 1868(b) of the Act provides that the Council meet once each calendar quarter, as requested by the Secretary, to discuss proposed changes in regulations and manual issuances that relate to physicians' services. Council members are expected to participate in all meetings. Section 1868(c) of the Act provides for payment of expenses and a per diem allowance for Council members at a rate equal to payment provided members of other advisory committees. In addition to making these payments, the Department of Health and Human Services provides management and support services to the Council.
(Section 1868 of the Social Security Act (42 U.S.C. 1395ee) and section 10(a) of Public Law 92-463 (5 U.S.C. App. 2 section 10(a)).
Pursuant to Public Law 92-463, notice is hereby given of a Telephone Conference Call meeting of the Center for Mental Health Services (CMHS) National Advisory Council in August 2001. The meeting will include the review, discussion and evaluation of individual grant applications. Therefore the meeting will be closed to the public as determined by the Administrator, SAMHSA,in accordance with Title 5 U.S.C. 552b(c)(6) and 5 U.S.C. App. 2, Section 10(d). Substantive program information, a summary of the meeting and a roster of Council members may be obtained from the contact listed below.
This notice is being published less than 15 days prior to the meeting due to the urgent need to meet timing limitations imposed by the review and funding cycle.
Pursuant to Public Law 92-463, notice is hereby given of a closed meeting of the Center for Substance Abuse Prevention (CSAP) National Advisory Council in August 2001.
The agenda of the meeting will include the review, discussion, and evaluation of individual grant applications. Therefore this meeting will be closed to the public as determined by the Administrator, SAMHSA, in accordance with Title 5 U.S.C. 552b(c)(6) and 5 U.S.C. App. 2, Section 10(d). If anyone needs special accommodations for persons with disabilities, please notify the contact listed below.
A roster of committee members may be obtained from Yuth Nimit, Ph.D., Executive Secretary, Rockwall II building, Suite 901, 5600 Fishers Lane, Rockville, Maryland 20857, Telephone: (301) 443-8455. Substantive program information may be obtained from the contact person listed below.
This notice is being published less than 15 days prior to the meeting due to the urgent need to meet timing limitations imposed by the review and funding cycle.
Office of the Chief Information Officer, HUD.
Notice.
The proposed information collection requirement described below has been submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act. The Department is soliciting public comments on the subject proposal.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB approval number (2529-0011) and should be sent to: Joseph F. Lackey, Jr., OMB Desk Officer, Office of Management and Budget, Room 10235, New Executive Office Building, Washington, DC 20503.
Wayne Eddins, Reports Management Officer, Q, Department of Housing and Urban Development, 451 Seventh Street, Southwest, Washington, DC, 20410; e-mail
The Department has submitted the proposal for the collection of information, as described below, to OMB for review, as required by the Paperwork Reduction Act (44 U.S.C. Chapter 35). The Notice lists the following information: (1) The title of the information collection proposal; (2) the office of the agency to collect the information; (3) the OMB approval number, if applicable; (4) the description of the need for the information and its proposed use; (5) the agency form number, if applicable; (6) what members of the public will be affected by the proposal; (7) how frequently information submissions will be required; (8) an estimate of the total number of hours needed to prepare the information submission including number of respondents, frequency of response, and hours of response; (9) whether the proposal is new, an extension, reinstatement, or revision of an information collection requirement; and (10) the name and telephone number of an agency official familiar with the proposal and of the OMB Desk Officer for the Department.
This Notice also lists the following information:
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. 35, as amended.
Office of the Chief Information Officer, HUD.
Notice.
The proposed information collection requirement described below has been submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act. The Department is soliciting public comments on the subject proposal.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB approval number (2577-0025) and should be sent to: Joseph F. Lackey, Jr., OMB Desk Officer, Office of Management and Budget, Room 10235, New Executive Office Building, Washington, DC 20503.
Wayne Eddins, Reports Management Officer, Q, Department of Housing and Urban Development, 451 Seventh Street, Southwest, Washington, DC 20410; e-mail Wayne_Eddins@HUD.gov; telephone (202) 708-2374. This is not a toll-free number. Copies of the proposed forms and other available documents submitted to OMB may be obtained from Mr. Eddins.
The Department has submitted the proposal for the collection of information, as described below, to OMB for review, as required by the Paperwork Reduction Act (44 U.S.C. Chapter 35). The Notice lists the following information: (1) The title of the information collection proposal; (2) the office of the agency to collect the information; (3) the OMB approval number, if applicable; (4) the description of the need for the information and its proposed use; (5) the agency form number, if applicable; (6) what members of the public will be affected by the proposal; (7) how frequently information submissions will be required; (8) an estimate of the total number of hours needed to prepare the information submission including number of respondents, frequency of response, and hours of response; (9) whether the proposal is new, an extension, reinstatement, or revision of an information collection requirement; and (10) the name and telephone number of an agency official familiar with the proposal and of the OMB Desk Officer for the Department.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. 35, as amended.
Office of the Chief Information Officer, HUD.
Notice.
The proposed information collection requirement described below has been submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act. The Department is soliciting public comments on the subject proposal.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB approval number (2528-0214) and should be sent to: Joseph F. Lackey, Jr., OMB Desk Officer, Office of Management and Budget, Room 10235, New Executive Office Building, Washington, DC 20503.
Wayne Eddins, Reports Management Officer, Q, Department of Housing and
The Department has submitted the proposal for the collection of information, as described below, to OMB for review, as required by the Paperwork Reduction Act (44 U.S.C. chapter 35). The Notice lists the following information: (1) The title of the information collection proposal; (2) the office of the agency to collect the information; (3) the OMB approval number, if applicable; (4) the description of the need for the information and its proposed use; (5) the agency form number, if applicable; (6) what members of the public will be affected by the proposal; (7) how frequently information submissions will be required; (8) an estimate of the total number of hours needed to prepare the information submission including number of respondents, frequency of response, and hours of response; (9) whether the proposal is new, an extension, reinstatement, or revision of an information collection requirement; and (10) the name and telephone number of an agency official familiar with the proposal and of the OMB Desk Officer for the Department.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. 35, as amended.
Indian Arts and Crafts Board.
Notice.
This notice announces that the Indian Arts and Crafts Board is requesting information from those federally recognized Indian tribes that have established a non-member Indian artisan certification program as described in P.L. 101-644. This request for information from the tribes will be submitted to the Office of Information and Regulatory Affairs, Office of Management and Budget, for review and approval after the public comment period as required by the Paperwork Reduction Act of 1995.
Submit comments on or before October 1, 2001.
Send your written comments to Attention: Indian Arts and Crafts Board, U.S. Department of the Interior, 1849 C Street, NW., MS 4004 MIB, Washington, DC 20240. If you wish to submit comments by facsimile, the number is (202) 208-5196, or you may send them by e-mail to “
Requests for additional information or copies of the proposed information collection instruments should be directed to Meridith Z. Stanton, Director, Indian Arts and Crafts Board, 1849 C Street, NW., MS 4004 MIB, Washington, DC 20240. You may also call (202) 208-3773 (not a toll free call), or send your request by e-mail to “
The Indian Arts and Crafts Board (Board) is the agency responsible for the enforcement of the Indian Arts and Crafts Act of 1990, P.L. 101-644. The Act is a truth-in-advertising law that prohibits the offer or display for sale, or sale of any art or craft product in a manner that falsely suggests it is Indian produced, an Indian product, or the product of a particular Indian tribe. Under the law, an “Indian” is defined as “any individual who is a member of an Indian tribe, or for the purposes of this section is certified as an Indian artisan by an Indian tribe.” It is voluntary for a tribe to establish a certification program in accordance with 25 CFR Part 309.
As the agency responsible for the enforcement of the Indian Arts and Crafts Act, it is necessary for the Board to know which federally recognized tribes have established a non-member artist certification program in accordance with the Act. This information is important for the effective enforcement of the Act because it will enable the Board to quickly verify whether or not a particular federally recognized tribe has a certification program under the Act, and to make a preliminary determination as to whether an individual is making a truthful claim regarding his or her certification by a particular federally recognized tribe.
Finally, this information will enable the Board to answer general inquiries from the public regarding tribal non-member certification programs.
In order to identify those federally recognized Indian tribes that have established a non-member Indian artisan certification program as set forth in P.L. 101-644, the Indian Arts and Crafts Board is mailing a response form and a self-addressed stamped envelope to federally recognized Indian tribes requesting that they (1) identify whether or not they have established a non-member artist certification program and, (2) if the tribe has established such a program, whether or not the tribe is willing to mail or fax to the Board a copy of the tribal statutory language establishing the certification program, and (3) whether the federally recognized tribe authorizes the Board to distribute
(1)
(2) Total annual reporting and record keeping burden.
(3)
The Department of the Interior invites comments on:
(a) Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(b) The accuracy of the agency's estimate of the burden of the collection and validity of the methodology and assumptions used;
(c) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(d) Ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other collection techniques or other forms of information technology. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, disclose or provide information to or for a federal agency. This includes the time needed to review instructions; to develop, acquire, install and utilize technology and systems for the purpose of collecting, validating and verifying information, processing and maintaining information, and disclosing and providing information; to train personnel and to be able to respond to a collection of information, to search data sources, to complete and review the collection of information; and to transmit or otherwise disclose the information.
All written comments will be available for public inspection in Room 4004 of the Main Interior Building, 1849 C Street, N.W., Washington, D.C. from 9:00 a.m. until 3:00 p.m., Monday through Friday, excluding legal holidays. A valid picture identification is required for entry into the Department of the Interior. The comments, names and addresses of commenters will be available for public view during regular business hours. If you wish us to withhold your personal information, you must state what personal information you want us to withhold prominently at the beginning of your comment. We will honor your request to the extent allowable by law.
An agency may not conduct or sponsor, and a person is not required to respond, to a collection of information unless it displays a currently valid Office of Management and Budget control number.
Indian Arts and Crafts Board, Interior
Notice.
The Indian Arts and Crafts Board announces an information collection to identify and revise listings for the
Submit comments on or before October 1, 2001.
Send your written comments to Attention: Indian Arts and Crafts Board, U.S. Department of the Interior, 1849 C Street, N.W., MS-4004 MIB, Washington, D.C. 20240. If you wish to submit comments by facsimile, the number is (202) 208-5196, or you may send them by e-mail to “
Requests for additional information or copies of the
The
The service of being listed in this publication is provided free-of-charge to members of federally recognized tribes. Businesses listed in the
The Director of the Board uses this information to determine whether an individual or business applying to be listed in the
To be listed in the
The following information is collected in a single-page form that is distributed by the Indian Arts and Crafts Board. Although listing in the
(a) to determine whether an individual or business meets the eligibility requirements for inclusion in the
(b) to identify the applicant's business information to be printed in the
(1)
(2) Annual reporting and record keeping burden.
(3)
The Department of the Interior invites comments on:
(a) Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(b) The accuracy of the agency's estimate of the burden of the collection and the validity of the methodology and assumptions used;
(c) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(d) Ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other collection techniques or other forms of information technology.
Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, disclose or provide information to or for a federal agency. This includes the time needed to review instructions; to develop, acquire, install and utilize technology and systems for the purpose of collecting, validating and verifying information, processing and maintaining information, and disclosing and providing information; to train personnel and to be able to respond to a collection of information, to search data sources, to complete and review the collection of information; and to transmit or otherwise disclose the information.
All written comments will be available for public inspection in Room 4004 of the Main Interior Building, 1849 C Street, NW., Washington, DC from 9 a.m. until 3 p.m., Monday through Friday, excluding legal holidays. A valid picture identification is required for entry into the Department of the Interior. The comments, names and addresses of commenters will be available for public view during regular business hours. If you wish us to withhold your personal information, you must state what personal information you want us to withhold prominently at the beginning of your comment. We will honor your request to the extent allowable by law.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid Office of Management and Budget control number.
Minerals Management Service, Interior.
Preparation of an environmental assessment and notice of unlisted activities pursuant to 15 CFR 930.54.
This FR Notice replaces the DEPARTMENT OF THE INTERIOR, Minerals Management Service FR Notice/Vol. 66, No. 119, Wednesday, June 20, 2001/Page 33109 for above subject
The Minerals Management Service (MMS) is preparing an environmental assessment (EA) for a proposed deepwater project to develop and produce hydrocarbon reserves about 70 miles offshore Louisiana and about 90 miles south of Alabama in Mississippi Canyon Block 348 (Camden Hills Prospect), Mississippi Canyon Block 305 (Aconcagua Prospect), and DeSoto Canyon Blocks 133 and 177 and Mississippi Canyon Block 217 (Kings Peak Prospect) in the Central and Eastern Planning Areas. This Notice provides additional information about the proposed activities and replaces the Notice published on June 20, 2001.
Minerals Management Service, Gulf of Mexico OCS Region, 1201 Elmwood Park Boulevard, New Orleans, Louisiana 70123-2394, Mr. Alvin Jones, telephone (504) 736-1713.
This EA implements the tiering process outlined in 40 CFR 1502.20, which encourages agencies to tier environmental documents, eliminating repetitive discussions of the same issue. By use of tiering to the most recent final environmental impact statement (EIS) for the Gulf of Mexico Central Planning Area for Lease Sales 169, 172, 175, 178, and 182 and by referencing related environmental documents, this EA concentrates on environmental issues specific to the proposed action. This Notice also provides constructive notification of these activities pursuant to 15 CFR 930.54.
The MMS Gulf of Mexico Region received Pipeline Right-of-Way (ROW) Applications from TotalFinaElf E&P USA, Inc., that propose to construct, maintain, and operate pipelines and umbilicals and produce the hydrocarbon reserves discovered in the Camden Hills field [Mississippi Canyon (MC) Block 348], the Aconcagua field (MC Block 305), and the Kings Peak field (MC Blocks 217 and 173; DeSoto Canyon (DC) Blocks 133 and 177). The Region also received a Right-of-Use and Easement application from Williams Field Services, Gulf Coast Company, L.P., for the installation and operation of a hydrocarbon processing platform located in Main Pass (MP) Block 261, which will receive production from the Camden Hills, Aconcagua, and Kings Peak fields. The combined Applications are referred to as the Canyon Express / Station Project. TotalFinaElf is the designated operator (DO) for the Canyon Express system, which includes the Camden Hills field [leased by Marathon Oil Company (DO)]; the Aconcagua field [leased by TotalFinaElf (DO)]; and the Kings Peak field, [leased by BP; (DO)]. The proposed Canyon Station processing platform would be installed and operated by Williams Field Services and would be within 100 km of the Breton National Wildlife Refuge. Between nine and eleven wells that were proposed under previously-approved Plans and Development Operations Coordination Documents will be operated by TotalFinaElf. Williams' proposed platform would receive gas and condensate from the Canyon Express Project and export the gas through four proposed export pipelines to four existing pipelines, all within MP Block 261. The Canyon Express/Station Project, which includes all export lines, flow lines, supply lines, jumpers, and umbilicals, consists of 32 individual pipeline segments to be permitted as ROW and lease-term pipelines and one host platform to be permitted as a Right-of-Use and Easement.
The Canyon Express ROW Applications consist of 28 ROW and lease-term pipeline segments. The lengths of pipeline segments range from 60 feet to over 55 miles. The water depth ranges from 7,265 feet in MC Block 348 to 299 feet at the proposed host platform in MP Block 261. TotalFinaElf will use a support base located in Fourchon, Louisiana, to support pipelaying activities associated with the Canyon Express Project. Some segments and portions of the proposed Canyon Express pipeline originate in and/or traverse six blocks in the Eastern Planning Area.
The Canyon Station Right-of-Use and Easement processing platform application consists of a processing platform and four export pipeline applications all within the Central
The two Canyon Express main flowlines are 12.75 inches in diameter and extend about 55 miles starting in MC Block 348 to MP Block 261. Outer Continental Shelf areas and blocks traversed by the Canyon Express/Station proposed pipelines are as follows: MC Blocks 348, 349, 305, 261, 217, 173, 85, and 41; DC Blocks 265, 221, 177, 133, 89, and 45 (within the Eastern Planning Area); Viosca Knoll (VK) Blocks 1003, 1002, 958, 914, 913, 869, 825, 824, 781, 780, 736, and 692; and MP Blocks 282, 261, and 260. The MC, VK, and MP areas and blocks are in the Central Planning Area. No additional drilling operations are considered as a part of this project.
Gas and condensate produced at the Camden Hills, Aconcagua, and Kings Peak fields will be transported to the proposed platform in MP Block 261. No single field contains sufficient reserves to economically justify development costs. The total reserves in the three fields are estimated as high as 900 billion cubic feet of gas. Greater than 99 percent of this gas is pure methane. Maximum Canyon Express hydrocarbon flow rate is 500 million cubic feet (0.5 BCF) per day with approximately 1,500 barrels of condensate per day. Canyon Express pipelines will be laid using a dynamically positioned vessel and construction time is estimated at about 90 days. Installation of the host platform, export lines, and production equipment for Canyon Station is expected to take several months.
The nearest distance of the Canyon Express easternmost flowline in DC Block 45 (in the Eastern Planning Area) is 98 miles from the Florida shoreline, 89 miles from the Alabama shoreline, 93 miles from the Mississippi shoreline, and 68 miles from the Louisiana shoreline. The nearest distance of the proposed host platform (in the Central Planning Area's MP Block 261) is 74 miles from the Florida shoreline, 60 miles from the Alabama shoreline, 63 miles from the Mississippi shoreline, and 56 miles from the Louisiana shoreline.
This EA will analyze the environmental effects and alternatives associated with the construction, maintenance, and operation of the pipelines and host platform as proposed by TotalFinaElf and Williams. Alternatives will include the proposed action with additional mitigations and no action (
For more information regarding the Canyon Express and Canyon Station applications, please visit those documents at
Notice.
The Department of Labor, as part of its continuing effort to reduce paperwork and respondent burden, conducts a preclearance consultation program to provide the general public and Federal agencies with an opportunity to comment on proposed and/or continuing collections of information in accordance with the Paperwork Reduction Act of 1995 (PRA95) (44 U.S.C. 3506(c)(2)(A)). This program helps to ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents can be properly assessed.
Submit comments on or before September 30, 2001.
Send comments to Daniel Carroll, Economist, Office of the Assistant Secretary for Policy, U.S. Department of Labor, Room S-2312, 200 Constitution Ave., NW, Washington, D.C. 20210. Commenters are encouraged to send their comments on a computer disk, or via Internet E-mail to
Daniel Carroll, Economist and Program Officer for the National Agricultural Workers Survey, Office of the Assistant Secretary for Policy, U.S. Department of Labor, Room S-2312, 200 Constitution Ave., NW, Washington, D.C. 20210. Mr. Carroll can be reached via Internet E-mail at
The Department of Labor (DOL) began surveying hired farm workers in 1988 via the National Agricultural Workers Survey (NAWS). The primary focus of the NAWS is to describe the demographic and employment characteristics of hired crop farm workers at the national level. To date, over 30,000 farm workers have been interviewed.
Prior to the NAWS and throughout the post-war period, data on farm workers was collected through the Current Population Survey (CPS). The U.S. Department of Agriculture (USDA) funded this effort and its Economic Research Service (ERS) analyzed and published the data. The responsibility for collecting data on the demographic and employment characteristics of hired farm workers was assumed by the Department of Labor in 1988.
The NAWS provides an understanding of the manpower resources available to U.S. agriculture, and both public and private service programs use the data for planning, implementing, and evaluating farm worker programs. It is the only national data source on the demographic and employment characteristics of hired farm workers.
The NAWS samples crop farm workers in three cycles each year in order to capture the seasonality of
The NAWS includes a primary questionnaire and four supplements (youth, parent, injury, and health). The purpose of this notice is to solicit comments on a proposed revision to the health supplement. The questionnaires are described below.
The primary instrument, in place since 1988, is administered to persons 14 years and older. Currently, approximately 4,000 interviews are conducted each year. It contains a family/household grid, where the interviewer records the education level and migration patterns of each member of the respondent's household, and an employment grid, where a full year of information on the work and geographic movement of the respondent is recorded. It also contains sections on income, assets and use of public services, experience working with pesticides, including special training, and work authorization status.
The employment profile includes the task and crop for agricultural jobs, type and amount of non-agricultural work, periods of unemployment and time spent abroad, and the respondent's location for every week of the year preceding the interview. For the respondent's current job, the NAWS collects information on wages and payment method (piece or hourly), health insurance, workers compensation and unemployment insurance, housing arrangements and other benefits and working conditions.
The demographic profile includes age, gender, place of birth, marital status, language ability, use of education and job training programs, and family history working in U.S. agriculture.
This supplement, in place since fiscal year 2000, is administered to workers ages 14 to 18 who complete the primary NAWS questionnaire. Approximately 450 interviews are conducted each year. The labor component solicits the respondent's age when he/she first went to an agricultural field in the U.S. and when he/she first worked in U.S. agriculture, the method of payment for work, the types of implements (ladder) and equipment (machines, vehicles) used and age when used, and how earnings from agricultural employment are allocated.
The education component solicits school and attendance information for the 12-month period preceding the date of interview and, for those youth who did not attend any school in the previous 12 months, the date of last attendance, type and location of school, reasons for no longer attending, and educational aspirations in the U.S.
This supplement, in place since fiscal year 2000, is administered to NAWS respondents who are parents of U.S. resident, dependent children between the ages of 6 and 18. Currently, approximately 750 parents provide information on an average of two children each, or 1,500 children per year. The labor component asks, for those children who did U.S. farm work in the 12-month period preceding the date of the interview, how many days the child worked in agriculture, if the child received a separate (individual) payment for that work, and the reason why the child worked.
The education component solicits information on school attendance and performance in the 12-month period preceding the interview, including number and type of schools attended, average grades, number of school days missed and reasons for days absent, number of times the parent met with the child's teacher to discuss the child's educational progress, and the parent's expectations for the child to graduate.
This supplement, sponsored by the Centers for Disease Control and Prevention, National Institute for Occupational Safety and Health (CDC/NIOSH), has been in place since 1999. It is administered to all NAWS respondents who had a qualifying occupational injury in U.S. agriculture in the 12-month period preceding the date of interview. Currently, each year approximately 4,000 respondents are administered one question to determine if the respondent has a qualifying injury. Respondents who have a qualifying injury are administered the full injury module. For each qualifying injury, the respondent is asked how, when and where the injury occurred, the body part(s) injured, where medical treatment was received and how the treatment was paid for, and the number of days the respondent couldn't work or worked at a reduced activity level.
This supplement, sponsored by the Centers for Disease Control and Prevention, National Institute for Occupational Safety and Health (CDC/NIOSH), has been in place since 1999. It is administered to all NAWS respondents. Four types of health information are solicited: history of smoking and drinking, a 12-month history of problems with body systems (gastrointestinal, respiratory, musculoskeletal, and skin) a lifetime health history of disease, and access to health care.
The proposed revision to this supplement is to include four new questions that would be administered to adult women only (about 600 per year). The four questions will come from the Behavioral Risk Factor Survey and will solicit information on cervical cancer screening. Collecting cervical cancer screening data from adult farm worker women will help CDC's Division of Cancer Prevention and Control address its mission of identifying and then reaching women who have rarely or never received cervical cancer screening. CDC has identified migrant and seasonal farm worker women as having an increased risk of cervical cancer and a population in which surveillance for cervical cancer screening has been minimal.
Currently, the Office of the Assistant Secretary for Policy (OASP) is soliciting comments concerning the proposed revision of the CDC/NIOSH sponsored health supplement and the extension of the information collection via all NAWS instruments. OASP is particularly interested in comments which:
Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
Enhance the quality, utility, and clarity of the information to be collected; and
Minimize the burden of the collection of information on those who are to respond.
Hard copies of the instruments associated with the proposed information collection request may be obtained by contacting the employee listed above in the
This action requests OMB approval of the paperwork requirements for revising the health supplement to the National Agricultural Workers Survey (NAWS).
Comments submitted in response to this notice will be summarized and/or included in the request for Office of Management and Budget approval of the information collection request; they will also become a matter of public record.
Authorized Official in the Office of the Assistant Secretary for Policy.
Employment and Training Administration, Labor.
Notice of adverse effect wage rates (AEWRs), allowable charges for meals, and maximum travel subsistence reimbursement for 2001.
The Employment and Training Administration (ETA) announces 2001 adverse effect wage rates (AEWRs) for employers seeking nonimmigrant alien (H-2A) workers for temporary or seasonal agricultural labor or services, the allowable charges employers seeking nonimmigrant alien workers for temporary or seasonal agricultural labor or services or logging work may levy upon their workers when they provide three meals per day, and the maximum travel subsistence reimbursement which a worker with receipts may claim in 2001.
AEWRs are the minimum wage rates which the Department of Labor has determined must be offered and paid to U.S. and alien workers by employers of nonimmigrant alien agricultural workers (H-2A visaholders). AEWRs are established to prevent the employment of these aliens from adversely affecting wages of similarly employed U.S. workers.
ETA also announces the new rates which covered agricultural and logging employers may charge their workers for three daily meals.
Under specified conditions, workers are entitled to reimbursement for travel subsistence expense. The minimum reimbursement is the charge for three daily meals as discussed above. ETA here announces the current maximum reimbursement for workers with receipts.
August 2, 2001.
Mrs. Grace A. Kilbane, Administrator, Office of Workforce Security, U.S. Department of Labor, Room S-4231, 200 Constitution Avenue, NW., Washington, DC 20210. Telephone: 202-693-3200 (this is not a toll-free number).
The Attorney General may not approve an employer's petition for admission of non-immigrant alien agricultural (H-2A) workers to perform agricultural labor or services of a temporary or seasonal nature in the United States unless the petitioner has applied to the Department of Labor (DOL) for an H-2A labor certification. The labor certification must show that: (1) There are not sufficient U.S. workers who are able, willing, and qualified and who will be available at the time and place needed to perform the labor or services involved in the petition; and (2) the employment of the alien in such labor or services will not adversely affect the wages and working conditions of workers in the United States similarly employed. 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(c), and 1188.
DOL's regulations for the H-2A program require that covered employers offer and pay their U.S. and H-2A workers no less than the applicable hourly adverse effect wage rate (AEWR). 20 CFR 655.102(b)(9); see also 20 CFR 655.107. Reference should be made to the preamble to the July 5, 1989, final rule (54 FR 28037), which explains in great depth the purpose and history of AEWRs, DOL's discretion in setting AEWRs, and the AEWR computation methodology at 20 CFR 655.107(a). See also 52 FR 20496, 20502-20505 (June 1, 1987).
Adverse effect wage rates (AEWRs) are the minimum wage rates which DOL has determined must be offered and paid to U.S. and alien workers by employers of nonimmigrant (H-2A) agricultural workers. DOL emphasizes, however, that such employers must pay the highest of the AEWR, the applicable prevailing hourly wage rate, or the legal federal or State minimum wage rate, as specified in the regulations. 20 CFR 655.102(b)(9). Except as otherwise provided in 20 CFR Part 655, Subpart B, the regionwide AEWR for all agricultural employment (except those occupations deemed inappropriate under the special circumstances provisions of 20 CFR 655.93) for which
The regulation at 20 CFR 655.107(a) requires the Administrator, Office of Workforce Security, to publish USDA field and livestock worker (combined) wage data as AEWRs in a
Among the minimum benefits and working conditions which DOL requires employers to offer their alien and U.S. workers in their applications for temporary logging and H-2A agricultural labor certification is the provision of three meals per day or free and convenient cooking and kitchen facilities. 20 CFR 655.102(b)(4) and 655.202(b)(4). Where the employer provides meals, the job offer must state the charge, if any, to the worker for meals.
DOL has published at 20 CFR 655.102(b)(4) and 655.111(a) the methodology for determining the maximum amounts covered H-2A agricultural employers may charge their U.S. and foreign workers for meals. The same methodology is applied at 20 CFR 655.202(b)(4) and 655.211(a) to covered H-2 logging employers. These rules provide for annual adjustments of the previous year's allowable charges based upon Consumer Price Index (CPI) data.
Each year the maximum charges allowed by 20 CFR 655.102(b)(4) and 655.202(b)(4) are changed by the same percentage as the twelve-month percent change in the CPI for all Urban Consumers for Food (CPI-U for Food) between December of the year just past and December of the year prior to that. Those regulations and 20 CFR 655.111(a) and 655.211(a) provide that the appropriate Regional Administrator (RA), Employment and Training Administration, may permit an employer to charge workers no more than a higher maximum amount for providing them with three meals a day, if justified and sufficiently documented. Each year, the higher maximum amounts permitted by 20 CFR 655.111(a) and 655.211(a) are changed by the same percentage as the twelve-month percent change in the CPI-U for Food between December of the year just past and December of the year prior to that. The regulations require the Administrator, Office of Workforce Security, to make the annual adjustments and to cause a notice to be published in the
DOL has determined the percentage change between December of 1999 and December of 2000 for the CPI-U for Food was 2.3 percent.
Accordingly, the maximum allowable charges under 20 CFR 655.102(b)(4), 655.202(b)(4), 655.111, and 655.211 were adjusted using this percentage change, and the new permissible charges for 2001 are as follows: (1) for 20 CFR 655.102(b)(4) and 655.202(b)(4), the charge, if any, shall be no more than $8.18 per day, unless the RA has approved a higher charge pursuant to 20 CFR 655.111 or 655.211(b); for 20 CFR 655.111 and 655.211, the RA may permit an employer to charge workers up to $10.13 per day for providing them with three meals per day, if the employer justifies the charge and submits to the RA the documentation required to support the higher charge.
The regulations at 20 CFR 655.102(b)(5) establish that the minimum daily subsistence expense related to travel expenses, for which a worker is entitled to reimbursement, is the employer's daily charge for three meals or, if the employer makes no charge, the amount permitted under 20 CFR 655.104(b)(4). The regulation is silent about the maximum amount to which a qualifying worker is entitled.
The Department, in Field Memorandum 42-94, established that the maximum is the meals component of the standard CONUS (continental United States) per diem rate established by the General Services Administration (GSA) and published at 41 CFR Ch. 301. The CONUS meal component is now $30.00 per day.
Workers who qualify for travel reimbursement are entitled to reimbursement up to the CONUS meal rate for related subsistence when they provide receipts. In determining the appropriate amount of subsistence reimbursement, the employer may use the GSA system under which a traveler qualifies for meal expense reimbursement per quarter of a day. Thus, a worker whose travel occurred during two quarters of a day is entitled, with receipts, to a maximum reimbursement of $15.00. If a worker has no receipts, the employer is not obligated to reimburse above the minimum stated at 20 CFR 655.102(b)(4) as specified above.
National Science Foundation, National Science Board.
The National Science Foundation, Room 1235, 4201 Wilson Boulevard, Arlington, VA 22230, www.nsf.gov/nsb.
Part of this meeting will be closed to the public. Part of this meeting will open to the public.
U. S. Nuclear Regulatory Commission (NRC)
Notice of the OMB review of information collection and solicitation of public comment.
The NRC has recently submitted to OMB for review the following proposal for the collection of information under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35). The NRC hereby informs potential respondents that an agency may not conduct or sponsor, and that a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.
1.
Revision.
2.
NRC Form 4, “Cumulative Occupational Dose History”
NRC Form 5, “Occupational Exposure Record for a Monitoring Period”.
3.
NRC Form 4: 3150-0005.
NRC Form 5: 3150-0006.
4.
NRC Form 4: Occasionally.
NRC Form 5: Annually.
5.
Licensees who are required to comply with 10 CFR part 20.
6.
NRC Form 4-23,077.
NRC Form 5-370,212.
7.
NRC Form 4: 286 (104 reactor sites and 182 materials licensees).
NRC Form 5: 5,400 (104 reactor and 5,296 materials licensees) are required to keep records; 286 (104 reactor sites and 182 material licensees) are required to submit reports in accordance with 10 CFR 20.2206(a).
8.
NRC Form 4: 11,531 hours or an average of 0.5 hours per response.
NRC Form 5: 66.682 (55,242 hours for recordkeeping hours or an average of 0.33 hours per record and 11,440 hours for reporting hours or an average of 40 hours per licensee).
9.
Not applicable.
10.
NRC Form 5 is used to record and report the results of individual monitoring for an occupational dose from radiation during a one-year period to ensure regulatory compliance with annual dose limits.
A copy of the final supporting statement may be viewed free of charge at the NRC Public Document Room, One White Flint North, 11555 Rockville Pike, Room O-1 F23, Rockville, MD 20852. OMB clearance requests are available at the NRC worldwide web site: http://www.nrc.gov/NRC/PUBLIC/OMB/index.html. The document will be available on the NRC home page site for 60 days after the signature date of this notice.
Comments and questions should be directed to the OMB reviewer listed below by September 4, 2001. Comments received after this date will be considered if it is practical to do so, but assurance of consideration cannot be given to comments received after this date.
Bryon Allen, Office of Information and Regulatory Affairs, (3150-0005 and 3150-0006), NEOB-10202, Office of Management and Budget, Washington, DC 20503.
Comments can also be submitted by telephone at (202) 395-3087.
The NRC Clearance Officer is Brenda Jo. Shelton, 301-415-7233.
For the Nuclear Regulatory Commission.
The U.S. Nuclear Regulatory Commission (NRC) is considering issuance of an exemption from Title 10 of the Code of Federal Regulations (10 CFR) Part 50, Section 71(e)(4) to Facility Operating License Nos. NPF-39 and NPF-85, issued to Exelon Generation Company, LLC, (the licensee), for operation of the Limerick Generating Station (LGS), Unit Nos. 1 and 2, located in Montgomery County, Pennsylvania.
The proposed action would exempt the licensee from some requirements of 10 CFR 50.71(e)(4) regarding submission of revisions to the Updated Final Safety Analysis Report (UFSAR). The proposed exemption would allow updates to the combined UFSAR for LGS, Unit Nos. 1 and 2, to be submitted within 6 months following completion of each LGS Unit
The proposed action is in accordance with the licensee's application for exemption dated May 30, 2001.
10 CFR 50.71(e)(4), requires licensees to submit updates to their UFSAR annually or within 6 months after each refueling outage provided that the interval between successive updates does not exceed 24 months. Since Units 1 and 2 share a common UFSAR, the licensee must update the same document annually or within 6 months after a refueling outage for either unit. The last change to 10 CFR 50.71(e)(4) was published in the
The NRC has completed its evaluation of the proposed action and concludes that it involves administrative activities unrelated to plant operation.
The proposed action will not increase the probability or consequences of accidents, no changes are being made in the types of any effluents that may be released off site, and there is no increase in occupational or public radiation exposure. Therefore, there are no significant radiological environmental impacts associated with the proposed action.
With regard to potential non-radiological impacts, the proposed action does not involve any historic sites. It does not affect non-radiological plant effluents and has no other environmental impact. Therefore, there are no significant non-radiological environmental impacts associated with the proposed action.
Accordingly, the NRC concludes that there are no significant environmental impacts associated with the proposed action.
As an alternative to the proposed action, the staff considered denial of the proposed action (i.e., the “no-action” alternative). Denial of the application would result in no change in current environmental impacts. The environmental impacts of the proposed action and the alternative action are similar.
This action does not involve the use of any resources not previously considered in the Final Environmental Statement for LGS.
In accordance with its stated policy, on June 18, 2001, the NRC staff consulted with the Pennsylvania State official, David Nye, of the Pennsylvania Department of Environmental Protection, Nuclear Safety Division, regarding the environmental impact of the proposed action. The State official had no comments.
On the basis of the environmental assessment, the NRC concludes that the proposed action will not have a significant effect on the quality of the human environment. Accordingly, the NRC has determined not to prepare an environmental impact statement for the proposed action.
For further details with respect to the proposed action, see the licensee's letter dated May 30, 2001. Documents may be examined, and/or copied for a fee, at the NRC's Public Document Room, located at One White Flint North, 11555 Rockville Pike (first floor), Rockville, Maryland. Publicly available records will be accessible electronically from the Agencywide Documents Access and Management Systems (ADAMS) Public Electronic Reading Room on the Internet at the NRC web site, http://www.nrc.gov/NRC/ADAMS/index.html. Persons who do not have access to ADAMS or who encounter problems in accessing the documents located in ADAMS may contact the NRC Public Document Room (PDR) Reference staff by telephone at 1-800-397-4209, 301-415-4737, or by e-mail to pdr@nrc.gov.
Securities and Exchange Commission (the “Commission”).
Notice of application for exemption under the investment advisers act of 1940 (“Advisers Act”).
Applicants: International Bank for Reconstruction and Development (“IBRD”) and International Development Association (“IDA”).
Applicants request an order declaring them to be persons not within the intent of section 202(a)(11), which defines the term “investment adviser.”
Secretary: SEC, 450 Fifth Street, NW., Washington, DC 20549-0609. Applicants: International Bank for Reconstruction and Development and International Development Association, 1818 H Street, NW., Washington, DC 20433.
Marilyn D. Barker, Senior Counsel, (202) 942-0719, or Jennifer L. Swain, Assistant Director, at (202) 942-0719 (Division of Investment Management, Office of Investment Adviser Regulation).
The following is a summary of the application. The complete application may be obtained for a fee at the Commission's Public Reference Branch.
1. IBRD was established by international treaty and its principal purpose is reducing poverty by promoting the economic development of member countries. IBRD has operated since 1946 under Articles of Agreement signed by the governments of its member countries, and its member countries own all of its capital stock.
2. IDA is an affiliated international organization, and membership in IDA is open only to members of IBRD. IDA was established in 1960, and its main goal is reducing poverty by promoting the economic development of its less developed member countries. IDA's members own all of its capital stock.
3. IBRD and IDA have the same staff. Applicants represent that since 1990, they have regularly offered multi-country technical assistance on reserves asset management to central banks of member countries, to other government institutions of member countries, and to other international organizations owned entirely by their sovereign nation members substantially all of which are also members of Applicants (“Sovereign Organizations”). Applicants represent this program's objectives is to assist central banks in adopting portfolio management techniques.
4. Applicants represent that they seek to expand their reserve assets technical assistance program to meet requests for more sustained services and requests for asset management. Applicants would provide the expanded services to member countries, central banks of member countries, other government institutions of member countries, and Sovereign Organizations. Applicants represent that they would manage only government or other public assets.
5. Applicants represent that they have also hosted financial assistance seminars for member countries, and that these courses have included asset and liability management, capital markets and derivatives activities, and middle and back office operations. Applicants represent that they now seek to provide detailed advice on debt management, hedging techniques for specific transactions (
6. Applicants represent that they plan to charge a fee for the expanded services, to recover the costs associated with the expanded services, including the incremental costs of additional assets under management.
1. Section 202(a)(11) of the Advisers Act defines “investment adviser” to mean “any person who, for compensation, engages in the business of advising others * * * as to the value of securities or as to the advisability of investing in, purchasing, or selling securities, or who, for compensation and as a part of a regular business, issues or promulgates analyses or reports concerning securities * * *.”
2. Applicants propose to offer asset management and other advisory services on a regular, recurring basis and to charge recipients a fee for these services. Accordingly, Applicants would be “in the business of” providing investment advice for compensation and would be “investment advisers” for purposes of the Advisers Act.
3. Section 202(a)(11)(F) of the Adviser Act authorizes the Commission to exclude from the definition of “investment adviser” person that are not within the intent of section 202(a)(ii). Applicants request that the Commission issue an order under section 202(a)(11)(F) declaring them to be persons not within the intent of section 202(a)(11).
4. Applicants argue that the Advisers Act contemplates the regulation of private sector entities and was not intended to regulate an entity that is an organization of sovereign nations providing investment advice to its sovereign nation members, their central banks and other government institutions, and Sovereign Organizations. Applicants state that section 202(b) of the Advisers Act provides that the Advisers Act is not applicable to the “United States, a State, or any political subdivision of a State, or any agency, authority, or instrumentality of any one or more of the foregoing, or any corporation which is wholly owned directly or indirectly by any one or more of the foregoing, or any officer, agent, or employee of any of the foregoing acting as such in the course of his official duty, unless such provision makes specific reference thereto.” While Applicants acknowledge that the Advisers Act does not expressly exempt international organizations made up solely of sovereign nations, Applicants argue that the Advisers Act seems clearly intended not to apply to such organizations.
5. Applicants acknowledge that a foreign individual or corporate investor would expect the protections of the United States securities laws to apply when doing business with an investment adviser resident in the United States. Applicants assert, however, that, given the particular nature of IBRD and IDA, their unique purposes, and the nature of their constituent members, recipients of the proposed investment advice would not reasonably expect the Advisers Act to apply.
By the Commission.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The CBOE proposes to amend its fee schedule. The text of the proposed rule
In its filing with the Commission, the CBOE included statements concerning the purpose of and basis for the proposed rule change, as amended, and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The CBOE has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The purpose of this proposed rule change is to make certain fee changes and deletions, and to renew and amend the Exchange's Prospective Fee Reduction Program. The proposal is the product of the Exchange's annual budget review. The fee changes were approved by the Exchange's Board of Directors pursuant to CBOE Rule 2.22. The CBOE proposes that the changes would be effective as of July 1, 2001.
The Exchange is amending the following fees. (1) Registration fees for Registered Representatives, Registered Options Principals, and Financial/Operations Principals will be increased from $45 to $55 for initial applications. Annual and transfer fees for these registered persons will be increased from $40 to $50. The Exchange proposes to amend CBOE Rule 2.22(b) to reflect the increase in these registration fees. (2) The ILX trading floor booth terminal rental fee will be increased from $400 to $425 per month, the ILX installation fee will be increased from $150 to $175 per month, the ILX removal fee will be increased from $100 to $125 per month, and the ILX relocation fee will be increased from $200 to $225 per month. (3) The various monthly booth fees will each be raised 10%. (4) The various membership application fees will each be raised 10%, except for the Fingerprint Processing fee, which will be raised 14% (from $35 to $40), and New Member Orientation Fee, which will remain unchanged at $500. The Exchange proposes to amend its Membership Fee Circular to reflect these membership application fee changes.
The various amendments contained in this filing are structured to fairly allocate the costs of operating the Exchange.
The Exchange proposes to renew and amend its Prospective Fee Reduction Program (“Program”). The Program provides that if at the end of any quarter of the Exchange's fiscal year, the Exchange's average contract volume per day on a fiscal year-to-date basis exceeds one of certain predetermined volume thresholds, the Exchange's market-maker transaction fees will be reduced in the following fiscal quarter in accordance with a fee reduction schedule. Trading volume in the fourth quarter of fiscal year 2001 will be used to determine the discount applied in the first quarter of fiscal year 2002. The CBOE proposes that the Program begin on July 1, 2001 at the beginning of the Exchange's 2002 fiscal year, and continue through the end of the Exchange's 2002 fiscal year, terminating June 30, 2002.
The amendments to the Program are structured to fairly allocate the costs of operating the Exchange in the event that the Exchange experiences higher volume. In addition, although the proposed rule change provides that the Exchange's Program will terminate at the end of the Exchange's 2002 fiscal year, the Exchange intends to evaluate this Program prior to the beginning of the 2002 fiscal year and may renew this Program in the same or modified form for the 2003 fiscal year.
The Exchange believes the proposed rule change, as amended, is consistent with Section 6(b) Act
The Exchange does not believe that the proposed rule change, as amended, will impose any burden on competition not necessary or appropriate in furtherance of purposes of the Act.
No written comments were either solicited or received.
Because the foregoing rule change establishes or changes a due, fee, or other charge imposed by the Exchange, it has become effective pursuant to Section 19(b)(3)(A)
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change, as amended, is consistent with the Act. Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609. Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change, as amended, that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room. Copies of such filing will also be available for inspection and copying at the principal office of the CBOE. All submissions should refer to File No. SR-CBOE-2001-37 and should be submitted by August 23, 2001.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
Nasdaq is herewith filing a proposal to amend NASD Rule 6541 which, for a pilot period ending February 8, 2002, prohibits member firms from trading ahead of customer limit orders in designated OTC Bulletin Board (“OTCBB”) securities. Specifically, Nasdaq proposes to amend Subsection (b) of NASD Rule 6541 for a three-month pilot period to reduce the minimum price improvement increment establishment therein from five cents to one cent, as explained in more detail below. Nasdaq believes that this change is non-controversial and, therefore, will implement the change immediately upon filing, pursuant to Rule 19b-4(f)(6) under the Act. The three-month pilot change to NASD Rule 6541(b) will operate from August 1, 2001, to November 1, 2001.
The text of this rule change is provided below. Proposed new language is in italics; proposed deletions are in brackets.
(a) Members shall be prohibited from “trading ahead” of customer limit orders that a member accepts in securities quoted on the OTCBB. Members handling customer limit orders, whether received from their own customers or from another member, are prohibited from trading at prices equal or superior to that of the customer limit order without executing the limit order. Members are under no obligation to accept limit orders from any customer.
(b) Members may not avoid such obligation specified in paragraph (a) through the provision of price improvement, unless
(c)-(e) No change.
In its filing with the Commission, Nasdaq included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. Nasdaq has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
On February 8, 2001, the Commission approved new NASD Rule 6541 which, on a pilot basis, applies the basic customer limit order protection principles that presently apply to Nasdaq securities to certain designated securities that are traded on the OTCBB. NASD Rule 6541(a), in general, prohibits member firms that accept customer limit orders in these securities from trading “ahead” of their customers for their own account at prices equal or superior to the limit orders, without executing them at the limit price. NASD Rule 6541(b) requires member firms to provide a minimum level of price improvement to incoming orders in OTCBB securities if the firm chooses to trade as principal with those incoming orders at prices superior to customer limit orders they currently hold. Specifically, NASD Rule 6541(b) states that members may not avoid their obligations under the Rule “through the provision of price improvement, unless such price improvement is for a minimum of the lesser of $0.05 or one-half (
On March 2, 2001, the Commission approved on a pilot basis a Nasdaq proposal that established a different price improvement increment for the tradining of Nasdaq issues than that established in NASD Rule 6541 with respect to the OTCBB.
As noted in the original filing to extend trading-ahead probhibitions to OTCBB securities on a pilot basis, the limit order protection embodied in NASD Rule 6541 is an investor protection tool based on NASD IM-2110-2 (commonly known as the “Manning Rule”). In
Nasdaq believes that the cost for stepping ahead of a customer's limit order should not be higher in the OTCB, where stock prices are significantly lower, than in Nasdaq. Accordingly, Nasdaq is amending NASD Rule 6541(b) to resemble the relevant language of NASD IM-2110-2, including the amendments approved by the Commission on April 6, 2001. Nasdaq will implement this rule change for three months from the date that NASD Rule 6541 takes effect. Nasdaq has stated that it will give effect to NASD Rule 6541 30 days following the publication of a Notice to Members that explains the operation of NASD Rule 6541, including the operation of the price improvement increment.
Under the proposal, Nasdaq would implement on the OTCBB a price improvement requirement of $0.01 or one-half the inside spread (whichever is less) for a market maker wishing to trade on a proprietary basis in front of a held customer limit order that is priced at or inside the current inside spread for an OTCBB security. For customer limit orders priced outside the inside spread, however, Nasdaq proposes to adopt a different standard. This standard would require a market maker seeking to trade in front of such a limit order, without triggering a Manning obligation, to execute its trade at a price at least equal to the inside bid (with respect to held customer limit orders to buy) or inside offer (for held orders to sell
The following examples illustrate how the proposed rule would operate:
Here, since MMA has executed within $0.01 of Customer #1's inside-the-spread buy limit order of 5.004, MMA would be obligated to protect that order and execute 1000 shares of Customer #1's order at a price of 5.004. if MMA wished to avoid a Manning obligation with respect to Customer #1's 5.004 buy limit order, MMA would have to execute its proprietary trade at a price at least $0.005 better than that limit order and execute at 5.009.
Under the Manning changes proposed here, since the market maker's 700 share proprietary order was executed at a price (10.00) that is at least equal to the inside bid, it would not be obligated to execute that limit order. Similarly, if the market remained at 10.00 to 10.01 and MMA held a customer limit order to sell priced at 10.016, MMA could trade proprietarily with an incoming buy order without triggering a Manning obligation with respect to the 10.016 outside-the-spread limit order if the market maker executes its proprietary trade at a price of at least 10.01.
Nasdaq believes that the proposed rule change draws an appropriate balance between providing effective limit order protection for customers who aggressively seek to participate in trading at the inside market while reducing the incidence of forced trading losses to market makers who, in meeting their firm quote and best-execution obligations to other market participants, trade near customer limit orders priced outside the spread.
Nasdaq has stated that both Nasdaq and NASD Regulation will closely monitor the protection of customer limit orders and analyze and evaluate trading activity to determine if future changes to the NASD Rule 6541 price improvement standard are warranted. One goal of this pilot program is to bring NASD Rule 6541 into closer conformity with NASD IM-2110-2, and to permit Nasdaq to analyze the extent to which the two rules should differ.
Nasdaq believes that the proposed rule change is consistent with the provisions of Section 15A(b)(6) of the Act
Nasdaq does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
Written comments were neither solicited nor received.
The proposed rule change has been filed by Nasdaq as a “non-controversial”
At any time within 60 days of this filing, the Commission may summarily abrogate this proposal if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Nasdaq has stated that it would implement the new trading-ahead provisions of NASD Rule 6541(b) for a three-month period from the date that NASD Rule 6541 takes effect. Nasdaq also has stated that it would give effect to NASD Rule 6541 30 days following publication of a Notice to Members that will explain the operation of NASD Rule 6541, including the operation of the new price improvement provisions. This Notice to Members was published in July 2001 and indicates that NASD Rule 6541 will become effective on August 1, 2001, and that the price improvement provisions of NASD Rule 6541(b) will be effective until November 1, 2001.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street, NW, Washington, DC 20549-0609. Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room. Copies of such filing will also be available for inspection and copying at the principal office of the NASD. All submissions should refer to File No. SR-NASD-2001-39 and should be submitted by August 23, 2001.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
On December 22, 2000, the New York Stock Exchange, Inc., (“NYSE”) filed with the Securities and Exchange Commission (“Commission”) a proposed rule change pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”) and on February 12, 2001, amended the proposed rule change.
NYSE Rule 412, “Customer Account Transfer Contracts,” prescribes procedures for member organizations transferring customer accounts and requires the use of the Automated Customer Account Transfer Service (“ACATS”) that is administered by the National Securities Clearing Corporation (“NSCC”). Since ACATS's inception in 1985, several enhancements to the system and to NYSE Rule 412 have allowed for faster and more efficient transfers of customer accounts. Recent ACATS modifications facilitate the transfer of accounts containing third party and/or proprietary products.
In the current ACATS environment, a carrying firms must deliver third party mutual funds without knowing whether the receiving firm has the capability to accept, service, and support such funds. If the receiving firm cannot support a particular fund, the delivery will be made to the receiving firms and then reversed back to the carrying firm. This results in substantial processing time by both firms and an overall delay in completing the transfer.
The proposed amendments to paragraphs (b)(1)/01, /04, and /06 of the Interpretation of NYSE Rule 412, in conjunction with the corresponding recent modifications to the ACATS system, require the receiving firms to review an asset validation report provided by the carrying firms and designate those third party products (i.e., mutual funds/money market funds) it is unable to support. Regarding the third party products it is unable to support, the receiving firm will have to provide the customer with a list of the specific assets and will have to request in writing further instructions from the customer with respect to the disposition of those third party products prior to or at the time it makes such a designation. The customer would, at minimum, have to be provided with the following options: (1) Liquidation; (2) retention by the carrying organization; (3) physical delivery in the customer's name to the customer; or (4) transfer to the third party that is the original source of the product. The transfer of the other assets in the account will be undertaken simultaneously with the receiving firm's designation of nontransferable assets.
The amendments also include a notification enhancement that will expedite the disposition of nontransferable proprietary products of
Finally, the NYSE is amendment the Interpretation of Rule 412 to address situations where a carrying organization internally reassigns customer accounts to other registered representatives and establishes new account numbers. The proposed amendment places responsibility for tracking these account number changes with the carrying organization and makes clear that a transfer request rejected on the basis of such reassignment will not be considered a legitimate exception under Rule 412.
The Commission received four comment letters. All the commenters expressed strong support for the proposed changes to the Interpretation of Rule 412 discussed above.
The Commission finds that the proposed rule change is consistent with the Act's requirements and the rules and regulations thereunder and particularly with the requirements of Section 6(b)(5) of the Act.
On the basis of the foregoing, the Commission finds that the proposal is consistent with the requirements of the act and in particular with the requirements of Section 17A of the Act and the rules and regulations thereunder.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
On June 15, 2001, the New York Stock Exchange, Inc. (“NYSE” or “Exchange” filed with the Securities and Exchange Commission (“SEC” or “Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange plans to begin trading certain ETFs on the Exchange on a UTP basis on July 31, 2001. These ETFs are The NASDAQ 100 Trust (symbol QQQ), Standard and Poor's Depositary Receipts (symbol SPY) and the Dow Industrials DIAMONDS (symbol DIA). ETFs are securities which are defined as Investment Company Units in Section 703.16 of the Exchange's Listed Company Manual. The Exchange proposes to amend NYSE Rule 1100(a) to clarify that NYSE rules applying to Investment Company Unites also apply to securities fitting that definition that are traded on the Exchange on the basis of UTP.
NYSE Rule 104 governs specialists' dealings in Their specialty stocks. NYSE Rule 104.10 requires specialists to obtain Floor Official approval when purchasing on a direct plus tick or selling on a direct minus tick, or when purchasing on a zero plus tick more than 50% of the stock offered. These transactions are seen as destabilizing, and may be effected by the specialist only with Floor Official approval. NYSE Rule 104.10(7) was amended several years ago to permit a specialist registered in an Investment Company Unit to effect proprietary destabilizing trades without Floor Official approval to bring the security into parity with the value of the index on which the unit is based or with The net asset value of the securities comprising the unit. The purpose of that amendment was to permit a specialist registered in a “country basket” to act expeditiously to bring the basket into parity with the value of the securities comprising the basket.
As noted above, ETFs are within the meaning of the term Investment Company Units, and thus, an ETF specialist is permitted under NYSE Rule 104.10(7) to effect proprietary destabilizing trades without Floor Official approval to bring the ETF into parity with the underlying index or the net asset value of the securities comprising the ETF. The Exchange proposes to permit specialists to effect proprietary destabilizing trades without floor official approval to bring the ETF into parity with a futures contract on the value of the index on which the Unit is
Finally, the Exchange proposes to close trading in an ETF at 4:05 p.m. (Eastern Time) on the last business day of each month, which is the same time that trading in a related futures contract closes on the last business day of the month.
The commenter stated that registered competitive market makers on the Exchange should be treated in a similar manner as specialists when trading ETFs on a UTP basis with respect to the ability to effect destabilizing transactions.
The Exchange responded that, as a matter of policy, it has a determined to utilize a unitary market maker system,
After careful review, the Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange
In particular, the Commission finds that the proposed amendments to NYSE Rules 104 and 1100 will enable the NYSE to accommodate the trading of ETFs on a UTP basis. The Commission believes clarifying NYSE Rule 1100(a) to expressly state that NYSE rules applying to Investment Company Units will also apply to ETFs trading on the Exchange on the basis of UTP should provide members and investors with notice as to the rules applicable to ETFs traded on the NYSE.
In addition, because ETFs are considered Investment Company Units, an ETF specialist is permitted under current NYSE Rule 104.10(7) to effect proprietary destabilizing trades without Floor Official approval to bring the ETF into parity with the underlying index or the net asset value of the securities comprising the ETF. The Exchange proposes to amend this rule to permit an ETF specialist to effect proprietary destabilizing transactions without Floor Official approval to bring the ETF into parity with a futures contract on the index on which the ETF is based. The Commission believes that it is reasonable to allow such transactions without Floor Official approval, so long as such trades are effected in a manner that is consistent with the maintenance of a fair and orderly market.
Furthermore, the Exchange proposal to close trading in an ETF at 4:05 p.m. on the last business day of each month is consistent with the close of trading in ETFs and futures on other markets and should facilitate the trading of these products across markets.
Finally, the Commission notes that the proposal was noticed for a 15-day comment period and the Commission received only one comment letter regarding the proposal for which the Exchange provided a response. Accordingly, the Commission finds good cause pursuant to Section 19(b)(2) of the Act
For the foregoing reasons, the Commission finds that the proposal is consistent with the requirements of the Act and rules and regulations thereunder.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Butler and Hamilton Counties and the contiguous counties of Clermont, Montgomery, Preble, and Warren in the State of Ohio; Dearborn, Franklin, and Union Counties in the State of Indiana; and Boone, Campbell, and Kenton Counties in the Commonwealth of Kentucky constitute a disaster area due to damages caused by severe storms and flooding that occurred July 15 through July 18, 2001. Applications for loans for physical damage as a result of this disaster may be filed until the close of business on September 27, 2001 and for economic injury until the close of business on April 29, 2002 at the address listed below or other locally announced locations:
U.S. Small Business Administration, Disaster Area 2 Office, One Baltimore Place, Suite 300, Atlanta, GA 30308.
The interest rates are:
The numbers assigned to this disaster for physical damage are 335511 for Ohio, 335611 for Indiana, and 335711 for Kentucky. The numbers assigned to this disaster for economic injury are 9M2300 for Ohio, 9M2400 for Indiana, and 9M2500 for Kentucky.
Notice.
Notice is hereby given of the following determinations: Pursuant to the authority vested in me by the Act of October 19, 1965 [79 Stat. 985, 22 U.S.C. 2459], the Foreign Affairs Reform and Restructuring Act of 1998 [112 Stat. 2681
For further information, including a list of exhibit objects, contact Paul W. Manning, Attorney-Adviser, Office of the Legal Adviser, 202/619-5997, and the address is United States Department of State, SA-44, Room 700, 301 4th Street, SW., Washington, DC 20547-0001.
The Humphrey Fellowships and Institutional Linkages Branch of the Office of Global Educational Programs in the Bureau of Educational and Cultural Affairs of the United States Department of State announces an open competition for an assistance award to cooperate with the Bureau in the administration of partnership programs in higher education in Fiscal Year 2002. These programs include the Educational Partnerships Program (formerly known as the College and University Affiliations Program), the NIS College and University Partnerships Program (NISCUPP), and the NIS Community College Partnerships Program (NISCCPP). The partnership programs in higher education award grants to accredited U.S. post-secondary institutions to administer projects that will strengthen mutual understanding and scholarly cooperation on subjects of enduring common interest to the United States, to other countries, and to the participating institutions. Contingent on the availability of funds, approximately 35 to 45 grant awards in an amount totaling between $7 million and $9 million may be issued under these programs during Fiscal Year 2002.
The integrity of these programs requires that they maintain the highest and most consistent standards of academic and professional quality in the selection of proposals and the implementation of projects. Public and private non-profit organizations meeting the provisions described in IRS regulation 26 CFR 1.501(c) may submit proposals to provide administrative and program services for the Bureau's educational partnership programs in Fiscal Year 2002 by undertaking the following activities: (1) Technical review of approximately 225 proposals that are expected to be submitted to the Bureau for these programs in Fiscal Year 2002; (2) coordinating the academic review of eligible proposals by independent panels of scholarly and professional experts in consultation with representatives of the Department of State, and providing expert recommendations about the merits of the proposals that should receive final consideration; (3) making substantive recommendations concerning the administration of the exchange projects to be funded through these programs and about the parameters and guidelines for these programs in future years; (4) dissemination of information about these programs for the FY2003 cycle; (5) conducting a proposal development workshop for approximately 25 administrators and faculty members at U.S. institutions of higher education; (6) cooperation in announcing the issuance of the FY 2002 grant awards and in promoting visibility for the projects funded under these programs; and, (7) development of an illustrated brochure for use in disseminating information about the purposes and achievements of educational partnership programs since their establishment by the Bureau in 1982.
The Bureau's international institutional partnership programs in higher education support cooperative partnerships of U.S. colleges and universities with foreign post-secondary institutions through faculty and staff exchanges and related activities. Competitions target specified themes and geographic regions and typically focus on the humanities, the social sciences, public administration, business, law, journalism and mass communications, public health policy and administration, or educational administration. A list of previously issued educational partnership and affiliations grants can be found online at:
(1) The Educational Partnerships Program, formerly known as the College and University Affiliations Program,
(2) On a parallel track and with funding provided through interagency transfers under the FREEDOM Support Act, the NIS College and University Partnerships Program (NISCUPP) supports partnerships with institutions in the NIS with an emphasis on projects that will assist countries in that world region in their transitions toward market-oriented economies and democratic political practices.
(3) Also with funding under the FREEDOM Support Act, the NIS Community College Partnerships Program (NISCCPP) supports the partnerships of U.S. community colleges with institutions in selected countries of the NIS with the same emphasis as in the NIS College and University Partnerships Program.
Based on recent experience, the Bureau anticipates receiving from 100 to 120 proposals for the Educational Partnerships Program; from 60 to 85 for the NISCUPP; and from 10 to 20 for the NISCCPP. The deadline for the submission of applications in these competitions is anticipated for January 2002. All competitions for which cooperation is invited in this solicitation will be announced in the
Applicant organizations should explain how they will administer the technical review in a fast and efficient manner, and how they will organize the independent review of eligible proposals by qualified experts in terms of the review criteria specified in the Requests for Grant Proposals. In addition, the proposal should explain how the applicant organization will utilize the expertise of panelists and its own knowledge of educational exchange programs to formulate recommendations for the administration of the FY2002 exchange projects and for the guidelines and parameters for these programs in future years. The proposal should also outline a strategy designed to ensure that information about these programs is widely disseminated to potential applicants for the FY2003 application cycles. An application workshop should be designed in consultation with the Bureau to increase the competitiveness of proposals submitted for these competitions. The proposal should outline a strategy for announcing the issuance of the FY2002 grant awards for these Programs in order to give appropriate visibility to funded projects and to the partnership programs within the U.S. and foreign academic communities. Finally, the proposal should outline a plan to prepare and publish a brochure about the purposes and achievements of educational partnership projects during the twenty years since the establishment of the College and University Affiliations Program in 1982.
Approximate Program Dates: Pending the availability of FY-2002 funds, the grant should begin on or about December 1, 2001 and end approximately November 30, 2002.
The Humphrey Fellowships and Institutional Linkages Branch of the Bureau's Office of Global Educational Programs will work closely with the recipient of the cooperative agreement and will maintain a regular dialogue on administrative issues and questions as they arise over the duration of the award. In consultation with the Branch, the award recipient shall undertake the following tasks:
(1) Review approximately 225 proposals for compliance with the technical eligibility factors published in the appropriate Request for Grant Proposals (RFGP) for FY 2002 competitions. Copies of previous year RFGPs for the three partnership programs listed in this solicitation document will be provided in the application package. In addition, copies of the FY 2002 RFGPs will be made available if they are published prior to the deadline for this competition. Currently open RFGPs may also be accessed online at
(2) Coordinate the independent review of technically eligible proposals in meetings of scholarly and professional experts who are qualified by their regional and subject expertise to evaluate the proposals in terms of the published review criteria. The recipient of the cooperative agreement shall organize the meetings to review the proposals regionally or thematically in consultation with the program office. Applicants are encouraged to discuss and to recommend, in their submissions, options for organizing the review of proposals. Following the panel meetings, the cooperating agency shall promptly provide the Bureau with a detailed appraisal report, including a summary of the panel discussion, to facilitate the Department of State's review of those proposals recommended for its consideration. The appraisal reports shall also provide an adequate basis for the Bureau's program office to provide constructive suggestions for improving the proposals under review.
(3) Provide, based on discussions with the independent reviewers and on its own knowledge of international scholarly and educational exchange programs, substantive and broad-ranging recommendations to the Bureau regarding the proposed exchange projects and for program guidelines and parameters in future years.
(4) Disseminate information to institutions that have not previously applied to receive grants through the educational partnership programs administered by the Office of Global Educational Programs. Proposals should include creative strategies for identifying and communicating effectively with appropriate institutional officials as well as potential project directors with subject and regional interests that coincide with eligible competition themes and regions.
(5) Conduct one one-day proposal development workshop for approximately 25 representatives of institutions that submitted proposals in FY2000, FY2001, or FY2002 but which were not funded. The purpose of the workshop would be to enable these institutions to improve the quality of their submissions in the future. The proposal should outline a strategy for sharing the costs of this workshop with the participating institutions and for developing an appropriate agenda that will meet their needs as well as those of the program office.
(6) In coordination with the Bureau, announce the issuance of the FY2002 grant awards in order to achieve greater
(7) In consultation with the Bureau, develop a brochure about the educational partnership programs, which have been administered by the Bureau since 1982. Summarize and highlight their objectives and achievements and, using information available on the program's website, report on the distribution of grants by field, country, and world region over more than twenty years of program activity.
In its submission, the applicant shall designate a coordinator to cooperate with the Bureau in overseeing the process for identifying qualified panelists, the technical reviews, the independent panel review meetings, the preparation of the detailed summaries of the academic review discussions, the provision of recommendations to the Bureau for the administration of these Programs, the dissemination of information about the FY2003 programs, the design and administration of the proposal development workshop, the announcement of the issuance of the FY2002 grant awards, and the preparation of the brochure.
To facilitate the observation of the panel review meetings by U.S. Department of State representatives, applicants should have the capacity to conduct the panel meetings in the Washington, D.C. metropolitan area.
Because grants awarded to eligible organizations with less than four years of experience in conducting international exchange programs will be limited to $60,000, such organizations are not encouraged to apply in this competition.
Applicants must submit a comprehensive budget for the entire program. The total request to the Bureau, including any amount requested for a Travel Management Center (TMC) account, may not exceed $225,000. Please note that the Proposal Submission Instructions explain the use of TMC accounts and that a minimum travel budget of $20,000 is required to establish a TMC account. There must be a summary budget as well as separate sub-budgets for each program component to provide clarification.
Please refer to the Solicitation Package for complete budget guidelines and formatting instructions.
The Office of Global Educational Programs, ECA/A/S/U, room 349, U.S. Department of State, SA-44, 301 4th Street, S.W., Washington, D.C. 20547, telephone: 202-619-4126; fax: 202-401-1433; e-mail: jcebra@pd.state.gov to request a Solicitation Package. The Solicitation Package contains detailed award criteria, required application forms, specific budget instructions, and standard guidelines for proposal preparation. Please specify Bureau Program Officer Jonathan Cebra on all inquiries and correspondence.
Please read the complete
The entire Solicitation Package may be downloaded from the Bureau's website at http://exchanges.state.gov/education/RFGPs. Please read all information before downloading.
All proposal copies must be received at the Bureau of Educational and Cultural Affairs by 5 p.m. Washington, D.C. time on Friday, October 19, 2001.
Faxed documents will not be accepted at any time. Documents postmarked the due date but received on a later date will not be accepted. Each applicant must ensure that the proposals are received by the above deadline.
Applicants must follow all instructions in the Solicitation Package. The original and seven copies of the application should be sent to: U.S. Department of State, SA-44, Bureau of Educational and Cultural Affairs, Ref.: ECA/A/S/U-02-02, Program Management, ECA/EX/PM, Room 534, 301 4th Street, SW., Washington, DC 20547.
Pursuant to the Bureau's authorizing legislation, programs must maintain a non-political character and should be balanced and representative of the diversity of American political, social, and cultural life. “Diversity” should be interpreted in the broadest sense and encompass differences including, but not limited to ethnicity, race, gender, religion, geographic location, socio-economic status, and physical challenges. Applicants are strongly encouraged to adhere to the advancement of this principle both in program administration and in program content. Please refer to the review criteria under the 'Support for Diversity' section for specific suggestions on incorporating diversity into the total proposal. Public Law 104-319 provides that “in carrying out programs of educational and cultural exchange in countries whose people do not fully enjoy freedom and democracy,” the Bureau “shall take appropriate steps to provide opportunities for participation in such programs to human rights and democracy leaders of such countries.” Public Law 106-113 requires that the governments of the countries described above do not have inappropriate influence in the selection process. Proposals should reflect advancement of these goals in their program contents, to the full extent deemed feasible.
The Bureau will acknowledge receipt of all proposals and will review them for technical eligibility. Proposals will be deemed ineligible if they do not fully adhere to the guidelines stated herein and in the Solicitation Package. All eligible proposals will be reviewed by the program office. Eligible proposals will be subject to compliance with Federal and Bureau regulations and guidelines and forwarded to Bureau grant panels for advisory review. Proposals may also be reviewed by the Office of the Legal Adviser or by other Department elements. Final funding decisions are at the discretion of the Department of State's Acting Assistant Secretary for Educational and Cultural Affairs. Final technical authority for assistance awards (grants or cooperative agreements) resides with the Bureau's Grants Officer.
Technically eligible applications will be competitively reviewed according to the criteria stated below. These criteria are not rank ordered and all carry equal weight in the proposal evaluation:
1. Quality of Program Plan/Ability to Achieve Program Objectives: Agenda and plan should adhere to the program overview and guidelines described above and in the Application Package. Objectives should be reasonable, feasible, and flexible. The proposal should clearly demonstrate how the organization will meet the program's objectives and plan, including the coordination of staffing for overlapping review schedules.
2. Institution's Record/Ability/Capacity: Proposed personnel and institutional resources should be
3. Support of Diversity: Proposals should demonstrate substantive support of the Bureau's policy on diversity. The proposal should describe the process for ensuring diversity among the review panelists. In addition to knowledge of eligible regions and subjects, panelists should also have appropriate experience with or knowledge of the types of institutions represented in the proposals to be reviewed.
4. Project Evaluation: Proposals should include a plan to evaluate the success of each program component. Draft survey questionnaires for the use of panelists and workshop participants should be provided.
5. Cost-effectiveness: The overhead and administrative components of the proposal, including salaries and honoraria, should be kept as low as possible. All other items should be necessary and appropriate. Proposals should maximize cost-sharing through other private sector support as well as institutional direct funding contributions.
Overall grant making authority for this program is contained in the Mutual Educational and Cultural Exchange Act of 1961, Public Law 87-256, as amended, also known as the Fulbright-Hays Act. The purpose of the Act is “to enable the Government of the United States to increase mutual understanding between the people of the United States and the people of other countries * * *; to strengthen the ties which unite us with other nations by demonstrating the educational and cultural interests, developments, and achievements of the people of the United States and other nations * * * and thus to assist in the development of friendly, sympathetic and peaceful relations between the United States and the other countries of the world.” The funding authority for portions of the program cited above is provided through the Freedom for Russia and Emerging Eurasian Democracies and Open Markets Support Act of 1992 (FREEDOM Support Act) and through the Support for East European Democracies Act.
The terms and conditions published in this RFGP are binding and may not be modified by any Bureau representative. Explanatory information provided by the Bureau that contradicts published language will not be binding. Issuance of the RFGP does not constitute an award commitment on the part of the Government. The Bureau reserves the right to reduce, revise, or increase proposal budgets in accordance with the needs of the program and the availability of funds. Awards made will be subject to periodic reporting and evaluation requirements.
Final awards cannot be made until funds have been appropriated by Congress, allocated and committed through internal Bureau procedures.
Federal Highway Administration (FHWA), Department of Transportation (DOT).
Notice of Intent.
The Federal Highway Administration (FHWA), as lead agency, in cooperation with the Riverside County Transportation Commission (RCTC) and the California Department of Transportation intend to prepare an Environmental Impact Statement (EIS) in accordance with the National Environmental Policy Act of 1969 (NEPA). The EIS will study alternatives to implement transportation corridor improvements in western Riverside County, specifically improvements for the Hemet to Corona/Lake Elsinore (East to West) transportation corridor.
Pursuant to 40 CFR 1508.28, FHWA intends to tier the EIS for this project. The Tier 1 EIS to be prepared pursuant to this notice will be used to support a route location decision. A future Tier 2 EIS will be prepared to present the design features and construction level of detail for the evaluation of alternatives within the preferred route.
Mary Ann Rondinella, Environmental Specialist, Federal Highway Administration, 980 Ninth Street, Suite 400, Sacramento, CA 95814-2724. Telephone: (916) 498-5040. Fax: (916) 498-5008. Cathy Bechtel, RCTC, 3560 University Avenue, Suite 100, Riverside, CA 92501. Telephone: (909) 787-7141. Fax: (909) 787-7920.
The Hemet to Corona/Lake Elsinore (East to West) transportation corridor is part of the Community and Environmental Transportation Acceptability Process (CETAP) being undertaken jointly by the County of Riverside and the RCTC. CETAP is one component of the Riverside County Integrated Project (RCIP), which also includes a new Riverside County General Plan and a Multi-Species Habitat Conservation Plan (MSHCP) for western Riverside County. According to current projections by the Southern California Association of Governments (SCAG), population and employment are expected to more than double in western Riverside County within the next 20 years. Due to the fast pace of development, opportunities are being lost to preserve land for habitat conservation and regional transportation facilities. These facilities are intended to address the mobility needs for both people and goods, with the potential for incorporating the needs for highways, transit, and utilities, where appropriate.
In July, 2000, the RCTC Board of Directors and the Riverside County Board of Supervisors directed the initiation of engineering and environmental studies for two corridors: Winchester to Temecula (North to South) and Hemet to Corona/Lake Elsinore (East to West), which will move forward in parallel. A separate Notice of Intent is being issued for the Winchester to Temecula Corridor.
The objective of the proposed EIS is to provide environmental analysis of a multimodal transportation facility within the Hemet to Corona/Lake Elsinore Corridor to allow agencies to proceed with the preservation of right-of-way for a preferred alternative. One goal of the RCIP process is to preserve the rights-of-way needed for the transportation facilities while minimizing potential impacts on habitat, aquatic resources, communities, landowners, and other elements of the environment.
Additional information regarding the Riverside County Integrated Project is also available on the Internet at
Public scoping meetings will be held. The public will be notified through local newspapers, postings in public places, and through other public notification methods. The notices will identify the place, dates, and time of the meetings.
To ensure that the full range of issues related to the proposed improvements
Federal Highway Administration (FHWA), Department of Transportation (DOT).
Notice of Intent.
The Federal Highway Administration (FHWA), as lead agency, in cooperation with the Riverside County Transportation Commission (RCTC) and the California Department of Transportation intend to prepare an Environmental Impact Statement (EIS) in accordance with the National Environmental Policy Act of 1969 (NEPA). The EIS will study alternatives to implement transportation corridor improvements in western Riverside County, specifically improvements for the Winchester to Temecula (North to South) transportation corridor.
Pursuant to 40 CFR 1508.28, FHWA intends to tier the EIS for this project. The Tier 1 EIS to be prepared pursuant to this notice will be used to support a route location decision. A future Tier 2 EIS will be prepared to present the design features and construction level of detail for the evaluation of alternatives within the preferred route.
Mary Ann Rondinella, Environmental Specialist, Federal Highway Administration, 980 Ninth Street, Suite 400, Sacramento, CA 95814-2724. Telephone: (916) 498-5040. Fax: (916) 498-5008. Cathy Bechtel, RCTC, 3560 University Avenue, Suite 100, Riverside, CA 92501. Telephone: (909) 787-7141. Fax: (909) 787-7920.
The Winchester to Temecula (North to south) transportation corridor is part of the Community and Environmental Transportation Acceptability Process (CETAP) being undertaken jointly by the county of Riverside and the RCTC. CETAP is one component of the Riverside County Integrated Project (RCIP), which also includes a new Riverside County General Plan and a Multi-Species Habitat Conservation Plan (MSHCP) for western Riverside County. According to current projections by the southern California Association of Governments (SCAG), population and employment are expected to more than double in western Riverside County within the next 20 years. Due to the fast pace of development, opportunities are being lost to preserve land for habitat conservation and regional transportation facilities. These facilities are intended to address the mobility needs for both people and goods, with the potential for incorporating the needs for highways, transit, and utilities, where appropriate.
In July, 2000, the RCTC Board of Directors and the Riverside County Board of Supervisors directed the initiation of engineering and environmental studies for two corridors: Winchester to Temecula (North to south) and Hemet to Corona/Lake Elsinore (East to West), which will move forward in parallel. A separate Notice of Intent is being issued for the Hemet to Corona/Lake Elsinore (East to West) Corridor.
The objective of the proposed EIS is to provide environmental analysis of a multimodal transportation facility within the Winchester to Temecula Corridor to allow agencies to proceed with the preservation of right-of-way for a preferred alternative. One goal of the RCIP process is to preserve the rights-of-way needed for the transportation facilities while minimizing potential impacts on habitat, aquatic resources, communities, landowners, and other elements of the environment.
Additional information regarding the Riverside County integrated Project is also available on the Internet at
Public scoping meetings will be held. The public will be notified through local newspapers, postings in public places, and through other public notification methods. The notices will identify the place, dates, and time of the meetings.
To ensure that the full range of issues related to the proposed improvements are addressed and all significant issues identified, comments and suggestions are invited from all interested parties. Comments or questions concerning this tiered EIS should be directed to the FHWA and/or RCTC at the addresses provided above.
Surface Transportation Board.
Notice Tentatively Approving Finance Application.
Tedesco Family ESB Trust, Francis Tedesco and Mark Tedesco, settlers, of Hoboken, NJ (Tedesco Family Trust or applicant), a noncarrier, has filed an application under 49 U.S.C. 14303 to continue in control of Academy Express, L.L.C., Academy Lines, L.L.C., and No. 22 Hillside, L.L.C., upon their becoming motor carriers of passengers, and upon applicant's acquisition of the properties of certain motor carriers of passengers already directly or indirectly controlled by applicant. Persons wishing to oppose the application must follow the rules at 49 CFR 1182.5 and 1182.8. The Board has tentatively approved the transaction and, if no opposing comments are timely filed, this notice will be the final Board action.
Comments must be filed by September 17, 2001. Applicant may file a reply by October 1, 2001. If no comments are filed by September 17, 2001, the approval is effective on that date.
Send an original and 10 copies of any comments referring to STB Docket No. MC-F-20983 to: Surface Transportation Board, Office of the Secretary, Case Control Unit, 1925 K Street, N.W., Washington, DC 20423-0001. In addition, send one copy of any comments to applicant's representative: Fritz R. Kahn, 1920 N. Street, N.W. (8th floor), Washington, DC 20036-1601.
Joseph H. Dettmar, (202) 565-1600. [TDD for the hearing impaired: 1-(800)-877-8339.]
Applicant proposes to simplify its corporate structure, reorganize its enterprise for tax purposes, and have its operating companies be limited liability companies, organized under the laws of the State of New Jersey.
Instead of ten companies
Academy Express, L.L.C., will be the motor carrier of passengers principally rendering special and charter operations, pursuant to operating authority to be issued by the Federal Motor Carrier Safety Administration (FMCSA). Subject to Board authorization, it will acquire the properties of Academy Bus Tours, Inc., and Academy Express, Inc., including those of American Limousine Service, Inc., Inner Circle Qonexions, Inc. (Reentitled Academy Express, Inc.), Academy Bus Tours, Inc. (PA), and Commuter Bus, Lines, Inc., whose operating authorities thereafter will be surrendered for cancellation.
Academy Lines, L.L.C., will be the motor carrier of passengers principally rendering commuter operations, pursuant to operating authority to be issued by FMCSA. Subject to Board authorization, it will acquire properties of Academy Lines, Inc., including those of Asbury Park Transit Lines, Inc., whose operating authorities thereafter will be surrendered for cancellation.
No. 22 Hillside, L.L.C., will become a motor carrier of passengers pursuant to operating authority to be issued by FMCSA. Subject to Board authorization, it will acquire the properties of No. 22 Hillside, Inc., whose operating authority thereafter will be surrendered for cancellation.
The three operating companies, Academy Express, L.L.C., Academy Lines, L.L.C., and No. 22 Hillside, L.L.C., will be controlled by a newly formed noncarrier, Academy Bus, L.L.C., a company indirectly controlled by applicant.
Academy Bus Tours, Inc., Academy Lines, Inc., No. 22 Hillside Corp., and Academy Express, Inc., thereafter will be noncarriers. The operating authority of Consolidated Bus Service, Inc., will be surrendered for cancellation, and it too will be a noncarrier.
According to applicant, these changes, while of obvious advantage to it, will also inure to the benefit of the passengers served by its directly-controlled and indirectly-controlled motor carriers of passengers. The transaction will diminish the need for fare increases and offer passengers better organized, highly specialized, and more responsive carriers in furtherance of the public interest.
Under 49 U.S.C. 14303(b), we must approve and authorize a transaction we find consistent with the public interest, taking into consideration at least: (1) the effect of the transaction on the adequacy of transportation to the public; (2) the total fixed charges that result; and (3) the interest of affected carrier employees.
Applicant has submitted the information required by 49 CFR 1182.2, including information to demonstrate that the proposed transaction is consistent with the public interest under 49 U.S.C. 14303. Specifically, applicant has stated that the proposed transaction will have a positive effect on the adequacy of transportation to the public and will result in no increase in fixed charges and no changes in employment. See 49 CFR 1182.2(a)(7). Additional information may be obtained from applicant's representative.
On the basis of the application, we find that the proposed transaction is consistent with the public interest and should be authorized. If any opposing comments are timely filed, this finding will be deemed vacated and, unless a final decision can be made on the record as developed, a procedural schedule will be adopted to reconsider the application. See 49 CFR 1182.6(c). If no opposing comments are filed by the expiration of the comment period, this decision will take effect automatically and will be the final Board action.
Board decisions and notices are available on our website at “WWW.STB.DOT.GOV.”
This decision will not significantly affect either the quality of the human environment or the conservation of energy resources.
1. The proposed continuance in control and acquisition of properties is approved and authorized, subject to the filing of opposing comments.
2. If timely opposing comments are filed, the findings made in this decision will be deemed vacated.
3. This decision will be effective on September 17, 2001, unless timely opposing comments are filed.
4. A copy of this notice will be served on: (1) U.S. Department of Transportation, Federal Motor Carrier Safety Administration—MC-RI, 400 Virginia Avenue, S.W., Suite 600, Washington, DC 20024; (2) the U.S. Department of Justice, Antitrust Division, 10th Street & Pennsylvania Avenue, N.W., Washington, DC 20530; and (3) the U.S. Department of Transportation, Office of the General Counsel, 400 7th Street, SW., Washington, DC 20590.
New York Central Lines, LLC (NYC) and CSX Transportation, Inc. (CSXT), have filed a notice of exemption under 49 CFR 1152 subpart F—
NYC and CSXT have certified that: (1) No local traffic has moved over the line for at least 2 years; (2) there has been no overhead traffic on the line; (3) no formal complaint filed by a user of rail service on the line (or by a state or local
As a condition to these exemptions, any employee adversely affected by the abandonment or discontinuance shall be protected under
A copy of any petition filed with the Board should be sent to applicants' representative: Natalie S. Rosenberg, Counsel, CSX Transportation, Inc., 500 Water Street J150, Jacksonville, FL 32202.
If the verified notice contains false or misleading information, the exemption is void
NYC and CSXT have filed an environmental report which addresses the effects, if any, of the abandonment and discontinuance on the environment and historic resources. SEA will issue an environmental assessment (EA) by August 7, 2001. Interested persons may obtain a copy of the EA by writing to SEA (Room 500, Surface Transportation Board, Washington, DC 20423) or by calling SEA, at (202) 565-1545. Comments on environmental and historic preservation matters must be filed within 15 days after the EA becomes available to the public.
Environmental, historic preservation, public use, or trail use/rail banking conditions will be imposed, where appropriate, in a subsequent decision.
Pursuant to the provisions of 49 CFR 1152.29(e)(2), NYC shall file a notice of consummation with the Board to signify that it has exercised the authority granted and fully abandoned the line. If consummation has not been effected by NYC's filing of a notice of consummation by August 2, 2002, and there are no legal or regulatory barriers to consummation, the authority to abandon will automatically expire.
Board decisions and notices are available on our website at
By the Board, David M. Konschnik, Director, Office of Proceedings.
The Department of Treasury has submitted the following public information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Copies of the submission(s) may be obtained by calling the Treasury Bureau Clearance Officer listed. Comments regarding this information collection should be addressed to the OMB reviewer listed and to the Treasury Department Clearance Officer, Department of the Treasury, Room 2110, 1425 New York Avenue, NW., Washington, DC 20220.
Written comments should be received on or before September 4, 2001 to be assured of consideration.
Clearance Officer: Garrick Shear, Internal Revenue Service, Room 5244, 1111 Constitution Avenue, NW., Washington, DC 20224.
OMB Reviewer: Alexander T. Hunt (202) 395-7860, Office of Management and Budget, Room 10202, New Executive Office Building, Washington, DC 20503.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
The Veterans Benefits Administration (VBA), Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before October 1, 2001.
Submit written comments on the collection of information to Nancy J. Kessinger, Veterans Benefits Administration (20S52), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420 or e-mail:
Nancy J. Kessinger at (202) 273-7079 or FAX (202) 275-5947.
Under the PRA of 1995 (Public Law 104-13; 44 U.S.C., 3501-3520), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to Section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VBA invites comments on: (1) whether the proposed collection of information is necessary for the proper performance of VBA's functions, including whether the information will have practical utility; (2) the accuracy of VBA's estimate of the burden of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or the use of other forms of information technology.
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C., 3501
Comments must be submitted on or before September 4, 2001.
Denise McLamb, Information Management Service (045A4), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420, (202) 273-8030, FAX (202) 273-5981 or e-mail:
An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The
Send comments and recommendations concerning any aspect of the information collection to VA's OMB Desk Officer, OMB Human Resources and Housing Branch, New Executive Office Building, Room 10235, Washington, DC 20503 (202) 395-7316. Please refer to “OMB Control No. 2900-0317” in any correspondence.
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C., 3501 et seq.), this notice announces that the Veterans Benefits Administration (VBA), Department of Veterans Affairs, has submitted the collection of information abstracted below to the Office of Management and Budget (OMB) for review and comment. The PRA submission describes the nature of the information collection and its expected cost and burden; it includes the actual data collection instrument.
Comments must be submitted on or before September 4, 2001.
Denise McLamb, Information Management Service (045A4), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420, (202) 273-8030, FAX (202) 273-5981 or e-mail: denise.mclamb@mail.va.gov. Please refer to “OMB Control No. 2900-0046.”
An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The
Send comments and recommendations concerning any aspect of the information collection to VA's OMB Desk Officer, OMB Human Resources and Housing Branch, New Executive Office Building, Room 10235, Washington, DC 20503 (202) 395-7316. Please refer to “OMB Control No. 2900-0046” in any correspondence.
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C., 3501
Comments must be submitted on or before September 4, 2001.
Denise McLamb, Information Management Service (045A4), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420, (202) 273-8030, FAX (202) 273-5981 or e-mail:
An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The
Send comments and recommendations concerning any aspect of the information collection to VA's Desk Officer, OMB Human Resources and Housing Branch, New Executive Office Building, Room 10235, Washington, DC 20503, (202) 395-7316. Please refer to “OMB Control No. 2900-0066” in any correspondence.
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C., 3501
Comments must be submitted on or before September 4, 2001.
Denise McLamb, Information Management Service (045A4), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420, (202) 273-8030, FAX (202) 273-5981 or e-mail:
An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The
Send comments and recommendations concerning any aspect of the information collection to VA's OMB Desk Officer, OMB Human Resources and Housing Branch, New Executive Office Building, Room 10235, Washington, DC 20503 (202) 395-7316. Please refer to “OMB Control No. 2900-0525” in any correspondence.
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C., 3501
Comments must be submitted on or before September 4, 2001.
Denise McLamb, Information Management Service (045A4), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420, (202) 273-8030, FAX (202) 273-5981 or e-mail:
An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The
Send comments and recommendations concerning any aspect of the information collection to VA's OMB Desk Officer, OMB Human Resources and Housing Branch, New Executive Office Building, Room 10235, Washington, DC 20503 (202) 395-7316. Please refer to “OMB Control No. 2900-0020” in any correspondence.
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C., 3501
Comments must be submitted on or before September 4, 2001.
Denise McLamb, Information Management Service (045A4), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420, (202) 273-8030, FAX (202) 273-5981 or e-mail:
An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The
Send comments and recommendations concerning any aspect of the information collection to VA's OMB Desk Officer, OMB Human Resources and Housing Branch, New Executive Office Building, Room 10235, Washington, DC 20503 (202) 395-7316. Please refer to “OMB Control No. 2900-0212” in any correspondence.
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995
Comments must be submitted on or before September 4, 2001.
Denise McLamb, Information Management Service (045A4), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420, (202) 273-8030 or FAX (202) 273-5981 or e-mail
An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The
Send comments and recommendations concerning any aspect of the information collection to VA's Desk Officer, OMB Human Resources and Housing Branch, New Executive Office Building, Room 10235, Washington, DC 20503 (202) 395-7316. Please refer to “OMB Control No. 2900-0133” in any correspondence.
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C., 3501
Comments must be submitted on or before September 4, 2001.
Denise McLamb, Information Management Service (045A4), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420, (202) 273-8030, FAX (202) 273-5981 or e-mail:
An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The
Send comments and recommendations concerning any aspect of the information collection to VA's OMB Desk Officer, OMB Human Resources and Housing Branch, New Executive Office Building, Room 10235, Washington, DC 20503 (202) 395-7316. Please refer to “OMB Control No. 2900-0442” in any correspondence.
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C., 3501 et seq.), this notice announces that the Veterans Benefits Administration (VBA), Department of Veterans Affairs, has submitted the collection of information abstracted below to the Office of Management and Budget (OMB) for review and comment. The PRA submission describes the nature of the information collection and its expected cost and burden; it includes the actual data collection instrument.
Comments must be submitted on or before September 4, 2001.
Denise McLamb, Information Management Service (045A4), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420, (202) 273-8030, FAX (202) 273-5981 or e-mail:
An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The
Send comments and recommendations concerning any aspect of the information collection to VA's OMB Desk Officer, OMB Human Resources and Housing Branch, New Executive Office Building, Room 10235, Washington, DC 20503 (202) 395-7316. Please refer to “OMB Control No. 2900-0099” in any correspondence.
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C., 3501
Comments must be submitted on or before September 4, 2001.
Denise McLamb, Information Management Service (045A4), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420, (202) 273-8030 or FAX (202) 273-5981 or e-mail
An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The
Send comments and recommendations concerning any aspect of the information collection to VA's Desk Officer, OMB Human Resources and Housing Branch, New Executive Office Building, Room 10235, Washington, DC 20503 (202) 395-7316. Please refer to “OMB Control No. 2900-0065” in any correspondence.
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C., 3501 et seq.), this notice announces that the Veterans Benefits Administration (VBA), Department of Veterans Affairs, has submitted the collection of information abstracted below to the Office of Management and Budget (OMB) for review and comment. The PRA submission describes the nature of the information collection and its expected cost and burden; it includes the actual data collection instrument.
Comments must be submitted on or before September 4, 2001.
Denise McLamb, Information Management Service (045A4), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420, (202) 273-8030, FAX (202) 273-5981 or e-mail
An agency may not conduct or sponsor, and a person is not required to
Send comments and recommendations concerning any aspect of the information collection to VA's OMB Desk Officer, OMB Human Resources and Housing Branch, New Executive Office Building, Room 10235, Washington, DC 20503 (202) 395-7316. Please refer to “OMB Control No. 2900-0387” in any correspondence.
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C., 3501
Comments must be submitted on or before September 4, 2001.
Denise McLamb, Information Management Service (045A4), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420, (202) 273-8030 or FAX (202) 273-5981 or e-mail to:
VA's regulation that effectuates external civil rights requirements is contained in 38 CFR, part 18. The regulation provides that the responsible agency official or designee shall, from time to time, review the practices of recipients to determine whether they are complying with the equal opportunity provisions. VA Form 20-8734 is used to gather information from post-secondary proprietary schools below college level. The information is used to assure that VA-funded programs are in compliance with equal opportunity laws. VA Form 20-8734a is used to gather information from students and instructors at post-secondary proprietary schools below college level. The information is used to assure that participants have equal access to equal treatment in VA-funded programs.
The forms are used by Education Compliance Survey Specialists in VA field stations during regularly scheduled educational compliance survey visits, as well as during investigations of equal opportunity complaints, to identify areas which may indicate whether there is disparate treatment of members of protected groups. The information obtained on these forms is analyzed and maintained on file at the regional office. If this information were not collected, VA would be unable to carry out the civil rights enforcement responsibilities established in the DOJ's guidelines and VA's regulations.
An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The
VBA estimates that it will take 1 hour to conduct an interview with the recipients (76 hours) and 30 minutes with the instructors (38 hours). The total number of hours for interviewing recipients and instructors is estimated at 114.
Send comments and recommendations concerning any aspect of the information collection to VA's OMB Desk Officer, OMB Human Resources and Housing Branch, New Executive Office Building, Room 10235, Washington, DC 20503 (202) 395-7316. Please refer to “OMB Control No. 2900-0455” in any correspondence.
By direction of the Secretary.
In notice document 01-18948 beginning on page 39517 in the issue of Tuesday, July 31, 2001, make the following correction:
On page 39521, in the first column under the heading
In rule document 01-16188 beginning on page 34372 in the issue of Thursday, June 28, 2001, make the following corrections:
1. On page 34373, in the second column, in §202.2, in the first paragraph, in the third line “ad interim” should read “
2. On the same page, in the same column, in §202.17, in the first paragraph, in the third line, “cum testamento annexo” should read “
3. On the same page, in the same column, in the same section, in the same paragraph, in the fifth line, “de bonis non cum testamento annexo” should read “
Environmental Protection Agency (EPA).
Proposed rule.
This action proposes national emission standards for hazardous air pollutants (NESHAP) for new and existing reinforced plastic composites production facilities. The proposed standards regulate production and ancillary processes used to manufacture products with thermoset resins and gel coats. Reinforced plastic composites production facilities emit hazardous air pollutants (HAP), such as styrene, methyl methacrylate (MMA), and methylene chloride (dichloromethane). These HAP have adverse health effects including headache, fatigue, depression, irritation of skin, eyes, and mucous membranes. Methylene chloride has been classified as a probable human carcinogen. These proposed standards will implement section 112(d) of the Clean Air Act (CAA) by requiring all major sources in this category to meet HAP emission standards reflecting the application of the maximum achievable control technology (MACT). We estimate the proposed NESHAP would reduce nationwide emissions of HAP from these facilities by approximately 14,500 tons per year (tpy) (65 percent).
Keith Barnett, Organic Chemicals Group, Emission Standards Division (MD-13), U.S. EPA, Research Triangle Park, North Carolina 27711, (919) 541-5605, barnett.keith@epamail.epa.gov. For public hearing information, contact Maria Noell, Organic Chemicals Group, Emission Standards Division (MD-13), U.S. EPA, Research Triangle Park, North Carolina 27711, (919) 541-5607.
Commenters wishing to submit proprietary information for consideration must clearly distinguish such information from other comments and clearly label it as CBI. Send submissions containing such proprietary information directly to the following address, and not to the public docket, to ensure that proprietary information is not inadvertently placed in the docket: Attention: Keith Barnett, c/o OAQPS Document Control Officer (Room 740B), U.S. EPA, 411 W. Chapel Hill Street, Durham, NC 27701. The EPA will disclose information identified as CBI only to the extent allowed by the procedures set forth in 40 CFR part 2. If no claim of confidentiality accompanies a submission when it is received by the EPA, the information may be made available to the public without further notice to the commenter.
This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this action. To determine whether your facility is regulated by this action, you should examine the applicability criteria in § 63.5785 of the proposed rule. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed in the preceding
Section 112 of the CAA requires us to list categories and subcategories of major sources and area sources of HAP and to establish NESHAP for the listed source categories and subcategories. Reinforced Plastic Composites Production (major sources only) was included on the initial list of source categories published on July 16, 1992 (57 FR 31576). Major sources of HAP are those that have the potential to emit greater than 10 tpy of any one HAP or 25 tpy of any combination of HAP.
The CAA requires NESHAP to reflect the maximum degree of reduction in emissions of HAP that is achievable. This level of control is commonly referred to as the MACT.
The MACT floor is the minimum control level allowed for NESHAP. This concept appears in section 112(d)(3) of the CAA. For new sources, the MACT floor cannot be less stringent than the emission control that is achieved in practice by the best-controlled similar source. The MACT standards for existing sources can be less stringent than standards for new sources, but they cannot be less stringent than the average emission limitation achieved by the best-performing 12 percent of existing sources in the category or subcategory (or the best-performing 5 sources for categories or subcategories with fewer than 30 sources).
In developing MACT, we also consider control options that are more stringent than the floor. We may establish standards more stringent than the floor based on the consideration of cost of achieving the emissions reductions, any nonair quality health and environmental impacts, and energy requirements.
Today's proposed NESHAP protect air quality and promote the public health by reducing emissions of some of the HAP listed in section 112(b)(1) of the CAA.
The HAP emitted by the reinforced plastic composites production industry include, but are not limited to, approximately 20,000 tpy of styrene, 550 tpy of methyl methacrylate, and 1100 tpy of methylene chloride. Exposure to these compounds has been demonstrated to cause adverse health effects, including chronic health disorders (
We do not have the type of current detailed data on each of the operations covered by today's proposed NESHAP (and the people living around the operations) necessary to conduct an analysis to determine the actual population exposures to the HAP emitted from these facilities and the potential for resultant health effects. Therefore, we do not know the extent to which the adverse health effects described above occur in the populations surrounding these operations. However, to the extent the adverse effects do occur, the proposed rule will reduce emissions and subsequent exposures.
Acute (short-term) exposure to styrene in humans results in mucous membrane and eye irritation and gastrointestinal effects. Chronic (long-term) exposure to styrene in humans may cause effects on the central nervous system (CNS) such as headache, fatigue, weakness, depression, and hearing loss. There is limited evidence that occupational exposure to styrene is associated with an increased frequency of spontaneous abortions and decreased frequency of births and an increased risk of leukemia and lymphoma. The EPA considers this evidence on occupational exposure to styrene to be inconclusive. The International Agency for Research on Cancer has classified styrene as a Group 2B, possible human carcinogen. The EPA has not classified styrene with respect to carcinogenicity.
Methyl methacrylate irritates the skin, eyes, and mucous membranes in humans. An allergic response to dermal exposure may develop. Respiratory effects following acute (short-term) exposure include chest tightness, dyspnea, coughing, wheezing, and reduced lung function. Neurological symptoms including headache, lethargy, lightheadedness, and a sensation of heaviness in the arms and legs have also been reported following acute exposure to MMA. Effects to the liver, kidney, brain, spleen, and bone marrow have been reported in chronic (long-term) animal studies of MMA inhalation. Fetal abnormalities have been reported in animals exposed to MMA by injection and inhalation. In several animal studies, no carcinogenic effects were observed. The EPA has classified MMA in Group E (not likely to be carcinogenic in humans).
Acute (short-term) exposure to methylene chloride by inhalation affects the nervous system, causing decreased visual, auditory, and motor functions. These effects are reversible once exposure ceases. The effects of chronic (long-term) exposure to methylene chloride suggest that the CNS is a potential target in both humans and animals. Limited animal studies have reported developmental effects. Human data are inconclusive regarding methylene chloride and cancer. Animal studies have shown increases in liver and lung cancer and benign mammary gland tumors following the inhalation of methylene chloride. The EPA has classified methylene chloride as a Group B2, probable human carcinogen.
We started the development of the proposed NESHAP by sending information collection request (ICR) surveys to facilities with applicable standard industries classification (SIC) codes. In addition to these surveys, we consulted with numerous members of the reinforced plastic composites industry, representatives of industry trade associations, and material and equipment vendors in developing the proposed NESHAP.
We held a series of approximately 35 meetings and visited approximately 25 facilities over a period of 8 years. These meetings and site visits were held to keep stakeholders informed and to gather additional data and information on issues relevant to the proposed NESHAP. The stakeholders helped in data gathering, arranged site visits, identified issues and provided information to help resolve issues in the rulemaking process.
We identified the MACT floor control level with information obtained through survey responses, site visits, telephone contacts, and operating permits. We assessed control options more stringent than the MACT floor by identifying the level(s) and method(s) of control achieved by the best controlled sources in the industry and conducting analyses designed to determine the cost, economic, energy, and environmental impacts of implementing the more stringent control options.
The Reinforced Plastic Composites Production source category involves the production of plastic products from cross-linking resins, usually in combination with reinforcing materials and inorganic fillers. The production of products that do not contain reinforcing materials is also included in this category, as well as the production of intermediate compounds which are later used to make the final plastic products. These non-reinforced products were included because they are produced using the same types of resins, have similar emission characteristics and would use similar emission controls. This source category is limited to those resins which contain styrene, either by itself or with a combination of other monomers or solvents.
There are a wide variety of operations that use styrene-containing resins to make thermoset plastics. Such production operations include manual resin application, mechanical resin application, filament winding, gel coat application, compression/injection molding, resin transfer molding, centrifugal casting, continuous lamination/continuous casting, polymer casting, pultrusion, and sheet molding compound (SMC) manufacturing. There are also ancillary operations such as cleaning, mixing/bulk molding compound (BMC) manufacturing, and storage that occur in conjunction with these production operations. Many facilities will use multiple operations in the manufacturing of their product.
This category does not include facilities which repair previously manufactured reinforced plastic composites, but do not have any co-located reinforced plastic composite manufacturing operations. The reason is that we believe that repair operations that are co-located with manufacturing operations use the same materials as the manufacturing processes. Repair operations that are not co-located may use different materials and application techniques.
This preamble section discusses the proposed NESHAP as they apply to you, the owner or operator of a new or existing reinforced plastic composites production facility.
Today's proposed rule applies to the Reinforced Plastic Composites Production source category. We evaluated the use of subcategories based on size (
The primary source of HAP emissions from the Reinforced Plastic Composites Production source category is the evaporation of styrene and other organic liquid HAP contained in the resin during the application and/or curing of the resin. Since styrene participates in the curing reaction, not all of it is emitted. The HAP emissions also occur during ancillary operations such as cleaning, mixing/BMC manufacturing, and storage.
Total baseline HAP emissions from the Reinforced Plastic Composites Production source category are approximately 22,200 tpy. Emissions from spray lay-up and gel coating constitute approximately 56 percent and 19 percent of the total baseline emissions, respectively. The remaining HAP emissions are primarily from hand lay-up/bucket and tool application, compression molding/injection molding, filament winding, SMC manufacturing, and centrifugal casting.
Under this proposed rule, the affected source would be the combination of all operations regulated under these standards at a reinforced plastic composites production facility. The following regulated operations are typically performed at reinforced plastic composites production facilities and are part of the affected source: open molding, closed molding, centrifugal casting, continuous lamination/continuous casting, polymer casting, pultrusion, SMC manufacturing, equipment cleaning, BMC/manufacturing/mixing, and storage of HAP containing materials.
We are proposing the requirements of these NESHAP in the form of emission limits (
In developing proposed requirements for reinforced plastic composites affected sources, we have provided an alternative format where possible. For example, a facility meeting a 95 percent emission reduction requirement for open molding processes can alternatively meet a point value. We have also provided alternatives for meeting the limits for continuous lamination and continuous casting processes.
We are proposing a threshold for existing sources to distinguish between sources that would meet the floor requirements, that are generally based on pollution prevention, and those that would have to meet a more stringent above-the-floor requirement based on 95 percent control of HAP emissions. For small businesses, the threshold is 250 tpy of combined HAP emissions for open molding, centrifugal casting, continuous lamination/casting, pultrusion, and SMC manufacturing. The definition of a small business for this source category ranges from 500 to 1000 employees. More specific information on the definition of a small business may be found in the discussion of the Regulatory Flexibility Act in the Administrative Requirements section of this preamble. For businesses that are not small businesses, the threshold is combined emissions of HAP of 100 tpy from the same operations.
For all open molding operations (
We are proposing to require owners and operators of continuous lamination/continuous casting operations at existing sources below the above-the-
We are proposing to require owners and operators of pultrusion operations at existing sources below the above-the-floor thresholds, and new sources with HAP emissions less than 100 tpy, to reduce emissions by 60 percent. This reduction is based on applying a wet enclosure or using direct die injection to limit emissions. Other new and existing sources must reduce emissions by 95 percent.
We are proposing to require owners and operators at both new and existing sources using injection/compression molding operations to reduce HAP emissions through the use of a work practice, whereby only one charge per machine is uncovered, unwrapped, or exposed per mold cycle per compression/injection molding machine.
We are proposing to require owners and operators of sheet molding compound operations at existing sources below the above-the-floor thresholds, and new sources with HAP emissions less than 100 tpy, to reduce emissions by using a nylon film, or film with equal or lower permeability to styrene, to enclose their SMC operation. Other new and existing sources must reduce emissions by 95 percent.
We are proposing to require owners and operators of all new and existing reinforced plastic composites affected sources to use cleaners containing no HAP.
We are proposing to require owners and operators of resin mixing and bulk molding compound operations at existing sources below the above-the-floor applicability thresholds, and new sources with HAP emissions less than 100 tpy, to limit HAP emissions by covering mixers such that there are no visible gaps. For other new and existing sources, we are proposing to require that you reduce emissions from mixing and BMC manufacturing by 95 percent.
For existing sources that are subject to the above-the-floor control level of 95 percent HAP emission reduction, we examined an alternative, based on pollution prevention, that would be more effective than the requirements of the MACT floor for existing sources. However, we were unable to develop an acceptable alternative to include in the proposed standards that meets the statutory requirements of MACT. We are soliciting comment on a possible alternative.
We are proposing to require all owners and operators at any existing or new affected source to keep all organic HAP-containing storage vessels covered, except during the addition or removal of materials.
The MACT model point value is a number calculated for each open molding operation and centrifugal casting operation and is a surrogate for emissions. The MACT model point value is a way to rank the relative performance of different resin and gel coat emissions reduction techniques. This approach allows you to create control strategies using different resin and gel coat emissions reduction techniques. The proposed standards provide equations to calculate MACT model point values based on HAP content and application method for each material that you use. These MACT model point values are then averaged and compared to limits in the proposed standards to determine if your open molding operations are in compliance.
The MACT model point values have units of pounds of HAP per ton of resin or gel coat applied. It is important to note that the MACT model point values are surrogates for emissions, and the MACT model point value equations are used only for determining compliance with the proposed Reinforced Plastic Composites Production NESHAP. The MACT model point value equations cannot be used in place of emission factor equations to demonstrate compliance with other regulations.
The MACT model point value equations only account for HAP content and application method. Other factors (including curing time, part thickness, and operator technique) also affect emissions, and these factors are not accounted for in the MACT model point value equations for reasons discussed in section III-E. Determining the HAP content of materials and the method of application is relatively simple, and these factors are the most significant in affecting emissions. More information on the development of this model is available in the docket.
We are proposing that all existing sources comply within 3 years of publication of the promulgated NESHAP in the
We are proposing to provide new and existing facilities 3 years to comply from the time their HAP emissions reach or exceed the applicability thresholds requiring the installation of add-on controls, if these HAP emissions increases occur after their initial compliance date.
Today's proposed NESHAP provide several options for compliance. We are providing these options to afford industry the flexibility to decide which method is best suited for each particular situation.
For open molding operations at existing and new sources, this proposal would allow you to choose to comply by meeting the individual MACT point value for each operation at your affected source, or by meeting the weighted average MACT point value for all open molding operations at your affected source. In addition, if you have any combination of manual resin application, mechanical resin application, filament winding, or centrifugal casting operations at your affected source, you could comply by meeting the MACT point value for any one of these operations and by using the same resin for all the other operations.
For open molding and centrifugal casting operations where the proposed rule would require you to meet a percent reduction, you could use an add-on control device to achieve the required reduction or you may choose to meet a MACT point value that corresponds to that particular operation's percent reduction.
For continuous casting/lamination operations at existing and new sources, we are proposing that you could
For existing and new pultrusion operations, under this proposed rule you could capture and vent your emissions to a control device that achieves the required percent reduction of HAP emissions. You could also elect to use direct die injection pultrusion machines with resin drip collection systems that meet the criteria specified. We are also proposing an additional alternative only available to existing sources: the use of a wet-area enclosure with a resin drip collection system. For both new and existing sources, you could use the available options in combination to achieve compliance under this proposed rule.
For ancillary operations at all sources, such as cleaning, storage, and mixing/BMC operations at existing sources, the only option we are proposing is to comply with the specified work practice standards.
We are proposing to require owners and operators of all affected sources which use a control device to demonstrate compliance to conduct an initial performance test using specified EPA test methods. The owner or operator would test at the inlet and outlet of the control device, and using these results, calculate a percent reduction.
We are also proposing to require owners and operators that use permanent total enclosures to conduct a design evaluation as specified by EPA Method 204. If your enclosure does not meet the requirements for a permanent total enclosure, you would need to test the enclosure using EPA Methods 204B through E to determine the capture efficiency.
Prior to the initial performance test, owners and operators of affected sources would be required to install the parameter monitoring equipment to be used to demonstrate compliance with the operating limits. During the initial performance test, the owners and operators would use the parameter monitoring equipment to establish operating parameter limits.
If you use an add-on control device, we are proposing that you monitor and record the operating parameters established during the initial performance test, and calculate average operating parameter values averaged over the period of time specified in these proposed NESHAP to demonstrate continuous compliance with the operating limits.
If you use the MACT point value system to maintain a point value less than or equal to the appropriate point value listed in today's proposed NESHAP, we are proposing to require that you calculate the point value one time if the resins or gel coats used in the operation remain the same, or if all the resins and gel coats used individually meet the required point values. You are required to calculate the point value on a 12-month rolling average each month if the resin or gel coat varies between operations or over time, and not all resins or gel coats taken individually meet the required point value.
If you are complying with work practice standards, we are proposing that you demonstrate compliance with the work practice standards in today's proposed NESHAP by performing the necessary work practices and by keeping a record certifying that you are in compliance with the work practices.
We are proposing that you submit Initial Notification, Notification of Performance Tests, and Notification of Compliance Status reports by the specified dates in the proposed NESHAP, which may vary depending on whether the affected source is new or existing.
You would also need to submit semiannual compliance reports. If you take action that is inconsistent with your approved startup, shutdown, and malfunction (SSM) plan, then you would need to submit SSM reports within 2 days of starting such action, and within 7 days of ending such action.
We are proposing that you keep a copy of each notification and report, along with supporting documentation for 5 years. Of this time, the first 2 years must be on-site. You would need to keep records related to SSM, records of performance tests, and records for each continuous parameter monitoring system. Under this proposed rule, if you must comply with the work practice standards, you would also need to keep records certifying that you are in compliance with the work practices for 5 years. If you are use the MACT point value system to demonstrate compliance, you would need to keep all data, assumptions, and calculations used to determine your MACT point value. For new and existing continuous lamination/casting operations, you would also need to keep the following records when complying with the percent reduction or pound per ton requirements: All data, assumptions, and calculations used to determine the percent reduction and/or pounds per ton, as applicable; a brief description of the rationale for the assignment of an equation or factor to each formula; all data, assumptions, and calculations used to derive facility-specific emission estimations and factors; identification and rationale for the worst-case scenario; and documentation that the appropriate regulatory agency has approved all emission estimation equations and factors.
Reinforced Plastic Composites Production was included on the initial list of source categories published on July 16, 1992 (57 FR 31576). In establishing the source category list, we stated that we would refine category descriptions during the rulemaking process, if necessary, based on additional information available. We did not find it necessary to refine the source category description for Reinforced Plastic Composites Production. However, we did define a number of different process groupings in order to develop representative MACT floors as described in the section on MACT floor development.
The proposed NESHAP regulate total HAP rather than individual HAP compounds. Standards for total HAP simplify compliance and enforcement compared with standards for individual
To provide compliance flexibility, we defined the affected source as the combination of all reinforced plastic composites operations at a site. This broad source definition allows a manufacturer to determine compliance by averaging the HAP content of different products used throughout the facility, within certain defined operations, and to use different application techniques as needed to meet product quality specifications.
A new affected source is any reinforced plastic composites production facility that meets both of these criteria:
• It commenced construction after today's date; and
• It is at a site that does not presently contain any reinforced plastic composites production operations.
In section 112 of the CAA, the definition of new sources also includes stationary sources that commence reconstruction after the publication date of a proposed NESHAP. The Small Business Advocacy Review (SBAR) Panel recommended that we carefully review our definition of reconstruction for this industry. As defined in the General Provisions for 40 CFR part 63, “reconstruction” means the replacement of components of an affected, or a previously unaffected, stationary source to such an extent that: (1) the fixed capital cost of the new components exceeds 50 percent of the fixed capital cost that would be required to construct a comparable new source; and (2) it is technologically and economically feasible for the reconstructed source to meet the relevant standards (as established by the Administrator or a State) pursuant to section 112 of the CAA.
We envision that the types of changes that would typically occur at existing facilities would include replacement of spray equipment and molds. We do not believe that it would be technologically and economically feasible for an existing source making these types of changes to meet new source MACT. Thus, such changes do not meet the definition of reconstruction in the General Provisions and would not subject the sources making such changes to new source MACT.
Several considerations underlie our MACT floor determinations. These considerations include: if/how the source category is to be subcategorized, how emissions types within the affected source are to be analyzed, and what are the best performing sources.
We identified 433 facilities that are major sources based on their potential to emit or have the potential to be major sources based on collocation with other HAP-emitting processes not part of this source category.
If technical differences in emissions characteristics, processes, control device applicability, or opportunities for pollution prevention exist within the source category, it may be appropriate to set separate floors based on these characteristics. In analyzing the available data on this source category, it was apparent that reinforced plastic composite facilities, as a whole, are extremely diverse in their emissions characteristics, control device applicability, and opportunities for pollution prevention. Therefore, we explored various ways of grouping the operations that may be present at these facilities.
For existing sources, it was apparent that almost all of the existing source floors would be based on pollution-prevention techniques such as lowering the HAP content in resins and gel coats, covering baths and containers holding resins, and using nonatomized spray applications. The extent and performance of pollution-prevention techniques are dependent on the specific operation. For this reason, the data were subdivided by specific operation, and a floor for each operation was developed.
Operations were segregated by several factors. The first was mold type (i.e., open, partially open, and closed). We also segregated operations by resin and gel coat application method; these include mechanical, manual, filament winding, and centrifugal casting. The type of mold and resin application method impacts the emission potential of a particular operation and also the effectiveness and applicability of different control techniques. We also segregated continuous operations such as pultrusion, continuous lamination, continuous casting, and the manufacture of sheet molding compound.
The final criteria used was product type. The required properties of the final product place certain constraints on the raw materials that can be used. This, in turn, influences the limits on levels of HAP in the raw materials. We identified several product criteria where the raw materials required to produce the product are dissimilar enough that a separate floor determination was required. The first is corrosion resistance. Reinforced plastic composites can generally be divided into two types—corrosion-resistant and noncorrosion-resistant products. Corrosion-resistant products require resins specifically formulated for corrosion-resistant applications. We also included high-strength applications in the corrosion-resistant grouping. These applications include products such as structural members and utility poles. These require resins with higher HAP contents than general purpose resins. The higher HAP contents for both corrosion-resistant and high-strength applications are necessary to produce a laminate with a greater concentration of styrene cross-linking. This higher level of cross-linking is necessary for either corrosion-resistance or high-strength.
We also separated gel coats from resins because these materials have significantly different functions in the final product and are formulated differently. Gel coats were further subdivided into clear, white and off-white, and other colors. Clear gel coats require significantly higher HAP content than pigmented gel coats, and are, therefore, unable to be formulated to the same HAP levels. White and off-white gel coats can be formulated to lower HAP contents on a weight-percent basis than other colors due to the fact that white pigments are heavier than other color pigments.
Class 1 fire and smoke rated products were separated from other products because their unique properties require a resin with a significantly higher HAP content than any other products. Separating Class 1 fire and smoke rated products was also one of the recommendations of the SBAR Panel.
Tooling resins and gel coats are used to make the molds that, in turn, are used to produce reinforced plastic parts. Molds must have different properties compared to the products they are used to produce. These include a high level of dimensional stability and resistance to heat compared to other reinforced plastic composites. Therefore, separate floors were developed for tooling resins and gel coats.
Once the data were subdivided by specific operation, the data were ranked by HAP emissions. Open molding and centrifugal casting operations were ranked based on a surrogate emission factor called a point value. As
Other factors such as gel time, part thickness, application temperature, and operator technique also affect emissions. However, there are less data available to determine the effects of these factors in a production setting. In addition, some of these factors, such as part thickness, are inherent to the process and cannot be changed without changing the final product. For this reason, other factors are not included in the MACT model point value equations. The point value system was also developed to allow a facility to average different operations together to meet the applicable proposed standards. The ability to average is intended to provide additional compliance flexibility.
The individual operations were then ranked based on the point value (for open molding and centrifugal casting), percent of emission reduction (pultrusion, continuous lamination/casting, SMC manufacturing), covering open containers or exposed resin (storage, BMC manufacturing/mixing, injection/compression molding), or the use on non-HAP cleaning solvents (equipment cleaning). The median facility of the top 12 percent (or top 5 for operations with less than 30 sources) was then selected as representing the existing source floor.
For some of these operations, the available data were insufficient to perform a ranking. These were non-white pigmented gel coats, products with a Class 1 fire and smoke rating, and high-strength products.
We identified two facilities that produce products that require a Class 1 fire and smoke rating. Both facilities use a resin with a 60 percent HAP content. We chose use of this resin as the floor. From a 60 percent HAP resin, we calculated different point values for mechanical, manual, and filament winding resin application.
The data we used to set floors for pigmented gel coats were weighted averages reported by the facilities. This data included some information on colors, but not enough facilities reported color information to perform a meaningful ranking. Because of the predominance of white and off-white gel coats, these data are not representative for other colors. However, many facilities offer other colors. The pigments used in white and off-white gel coats are much denser than the pigments used in other colors. For that reason, weight percent HAP in white and off-white gel coats tends to be lower. A floor based on white and off-white gel coat HAP contents would preclude a facility using other colors.
Based on industry comments and the recommendation of the SBAR panel, we determined that a HAP content of 37 percent is the minimum that would provide acceptable gel coat performance for gel coats with colors other than white and off-white. In the absence of any other data, we adopted a 37 percent HAP as the floor for these gel coats. The 37 percent HAP content was converted to a point value using the appropriate point value equation. (See the final report of the SBAR Panel in the docket.) We request comments and supporting data on the appropriateness of 37 percent as a minimum HAP content for acceptable performance for gel coats with colors other than white and off-white.
The data supplied by industry did not differentiate products that require higher than typical strength properties. Therefore, we could not determine a floor with the facility data base. We discussed this issue as part of the SBAR Panel with several manufacturers that produce high-strength products. We also reviewed the requirements of South Coast Air Quality Management District Rule 1162. Rule 1162 specifically addresses high-strength products and contains the same requirements for high-strength products and corrosion-resistant products. As a result, we determined using the data for corrosion-resistant resins would be the most appropriate way to determine floors for high-strength products. Therefore, we are proposing the same floors for high-strength products and corrosion-resistant products. This is consistent with a recommendation of the SBAR Panel. We solicit comments on this approach.
There are many facilities that use multiple operations to produce a product. An example of this would be a facility producing corrosion-resistant tanks using filament winding to produce the main circular portion, mechanical resin application for the tank ends, and manual resin application to join the parts together. Industry representatives pointed out that the floors we had developed from the data base would potentially require a facility to use three different resins to produce a single product. This could potentially lead to problems of resin compatibility and product failures. The SBAR Panel report included a recommendation that we allow a facility to use the same resin for all processes.
As a result, we reexamined the floors for facilities with multiple processes. We determined that, based on the data available, the appropriate approach would be to have a provision in the proposed standards to allow a facility to select one operation, determine the resin they could use to meet the floor, and then use that same resin in all other operations. We did not have the data to determine what that operation should be in all cases, so we are not specifying a particular operation in the proposed standards. We assumed that a facility would select the operation that allows them to use the highest HAP content resin.
At the recommendation of the SBAR Panel, we also reexamined the floors for tooling resins. Several of the small entity representatives that advised the panel stated that the proposed floor for tooling resins will result in inferior quality tools. We believe that the current floor for tooling resins allows sufficient flexibility in resin HAP content as long as the resin can be applied with nonatomized spray technology. We are specifically soliciting comment on the applicability of nonatomized spray technology to tooling resins. Based on any comments, we intend to further examine the floor for tooling resins.
In developing the floor for new sources, we developed two subcategories—sources with emissions of 100 tpy or above and sources with emissions below 100 tpy. Our reason for examining sources with emissions below 100 tpy separately is that such facilities are likely to have more difficulty maintaining and operating add-on controls than larger-emitting sources, and we are unsure of the performance of add-on controls at these facilities. Separating the data into large and small HAP-emitting sources for developing new source MACT floors was also one of the recommendations of the SBAR Panel.
In examining the facilities with emissions of 100 tpy or more, we found two facilities that control emissions from open molding and mixing by 95 percent overall. These facilities range in size from approximately 100 tpy to 1000 tpy of HAP emissions prior to the add-on control device. This level of control was chosen as the new source MACT floor for open molding and mixing at facilities with 100 tpy or more of uncontrolled emissions.
We also considered whether to evaluate the applicability of add-on controls to each of the different
The two facilities produce parts that range in size from that of bathtubs to truck caps. It is possible that larger size parts may require larger enclosures. We have not identified any facilities in the reinforced plastic composites industry where processes producing large parts, such as storage tanks and swimming pools, have applied 100 percent efficient capture systems. However, we have identified facilities using 100 percent efficient capture systems that apply coatings to large parts such as helicopters and ships. These coating operations have similar issues of large air flows (due to worker exposure concerns) and low outlet HAP emission concentrations. Based on this, we believe that it is technically feasible to apply 100 percent efficient capture systems to larger parts in the reinforced plastic composites industry.
We evaluated the applicability of the 95 percent control level as the new source floor for other operations. Centrifugal casting, continuous lamination/casting, pultrusion, and SMC manufacturing are similar in emissions characteristics to open molding. There are five facilities that have applied highly efficient add-on controls to these operations, with overall control efficiencies ranging from 90 to 95 percent. For this reason, we chose 95 percent control as the new source MACT floor for these operations at facilities with uncontrolled emissions of at least 100 tpy.
We also considered whether the new source MACT floor for the previously mentioned operations should be incorporation of the pollution-prevention measures that make up the existing source floors, combined with 95 percent control. This approach would actually result in a higher overall emissions reduction. In addition, incorporating the pollution prevention measures would reduce the potential for worker exposure in situations where processes have to be enclosed to meet the 95 percent control requirement.
However, we determined that selecting incorporation of pollution-prevention techniques in addition to the 95 percent control requirement as the new source floor was not appropriate because the facilities that incorporate 95 percent control, which we determined represent the best controlled facilities, do not also incorporate the best pollution prevention techniques. Therefore, combining the pollution-prevention requirements with the 95 percent control requirements would actually result in an overall control level that exceeds the levels at the best controlled facilities.
We are requesting comment on whether the new source floor for facilities that must meet the 95 percent control requirements should also incorporate the pollution-prevention requirements. We also request that commentors provide any available data on worker exposure that would help us quantify the benefits of incorporating pollution-prevention requirements with the 95 percent control requirements.
We are not proposing 95 percent control for closed molding, polymer casting, equipment cleaning, and resin storage, which have much lower emissions than the other types of operations. One of the facilities that sets the new source floor has a closed molding operation on site. This operation is not controlled through the use of an add-on control device. We attempted to identify other means of emissions reductions for these processes. For compression/injection molding, which is a type of closed molding, the only identified means of emission reduction was the work practice of uncovering one charge at a time. Therefore, this was chosen as the new source MACT floor for compression/injection molding. For polymer casting and resin transfer molding, we were not able to identify any means of reduction, either add-on controls or process modifications such as the use of low HAP resins. Thus, the new source MACT floor for these sources is no emissions reduction.
For equipment cleaning, the proposed new source floor is based on use of cleaners with no HAP. Of the 433 facilities that reported information on cleaning, 353 reported using no cleaning materials containing HAP. However, we are not regulating solvents used for cleaning cured resin or gel coat from application equipment because we know of no means of reducing HAP emissions. Cured resin or gel coat inside a gun is usually the result of operator error or an equipment failure. To clean cured resin and gel coat, an aggressive solvent is needed, and no low-HAP alternatives are available. The equipment is usually soaked in a covered bucket resulting in little evaporation of the solvent. The amount of solvent needed per year is determined by the size of the facility, degree of operator error, and equipment failure rates. Because operator error and equipment failure are hard to predict, we could determine no basis for an annual limit of solvent usage that would be achievable by all facilities. These proposed NESHAP, therefore, allow HAP-containing solvents only for cleaning cured resin and gel coat from the application equipment.
Over 250 facilities reported covering storage containers. We selected covering storage containers as the new source MACT floor for storage. We identified two facilities that vent the storage areas to a control device; however, we determined that the available data are insufficient to quantify additional emissions reductions that would result from controlling storage tanks and containers by 95 percent versus just covering the storage tanks and containers.
We calculated separate floors for facilities with less than 100 tpy of emissions from open molding, centrifugal casting continuous lamination/casting, pultrusion, SMC manufacturing, and BMC manufacturing/mixing. Though there are facilities with emissions below 100 tpy that have add-on controls, data were not available to substantiate their level of control. Therefore, we could not state that they achieved a level of control above that achieved by the pollution-prevention techniques, and thus, meet the definition of best controlled facilities. Also, smaller-emitting facilities tend to operate with fewer shifts than larger ones. The more frequent startups and shutdowns could tend to make it more difficult to maintain and operate add-on controls compared to larger-emitting facilities. For these reasons, the floor for new sources with less than 100 tpy of emissions is based on pollution-prevention techniques.
For these smaller-emitting facilities, we are proposing to set the new source MACT floor at the same level as the existing source MACT floor. This approach was recommended by the SBAR Panel. We believe the existing source MACT floor represents the greatest degree of emissions reduction that is achievable for small facilities under all circumstances. For new sources, the CAA requires the MACT floor to be based on the HAP emissions control achieved in practice by the best controlled similar source, as determined by the Administrator. The reinforced plastic composites industry is extraordinarily diverse. The products
While some facilities are using lower-HAP materials and techniques than represented by the existing source MACT floor, we do not believe that these examples are universally applicable to all new reinforced plastic composites manufacturers. We have no data to precisely define the particular combination of requirements where these lower-emitting options can be used and still maintain the minimum required strength and durability requirements of these products. Consequently, we have set the proposed floor at the most stringent level that we have determined all sources emitting less than 100 tpy can achieve.
We did not find that the quantity of HAP emissions from the source had any effect on its ability to incorporate pollution-prevention technology, or on the effectiveness of these technologies. For that reason, we did not subdivide the data for existing sources where the floors are based mainly on pollution prevention.
During the SBAR Panel discussions, many of the small entity representatives expressed concern regarding the affordability and technical feasibility of add-on controls, and commented that they may be able to achieve similar HAP reductions using pollution-prevention measures, which tend to be less expensive. For example, if a facility could reduce its emissions by 50 percent each year for 3 years using the pollution-prevention alternative, it may be able to achieve reductions similar to thermal oxidation (nearly 90 percent versus 95 percent). The panel recommended that EPA explore with industry the possibility of a more stringent pollution-prevention option as an alternative to add-on controls. The panel believed that this option should be more stringent than the pollution-prevention technology present in the current existing source MACT floors.
We discussed with industry the possibility of a pollution-prevention control option in lieu of add-on controls. We were unable to develop an option that we believe meets the statutory requirements of MACT. However, we are soliciting comment on a possible pollution-prevention alternative to the 95 percent HAP reduction requirement. The specific information we are seeking is the maximum level of control that can be achieved by pollution prevention, and the time necessary to incorporate pollution-prevention techniques. The pollution-prevention techniques of which we are aware include low HAP resins and gel coats, nonatomized resin and gel coat applications, vapor suppressed resins, vacuum bagging, accelerated resin curing, and conversion of open molding processes to closed molding. We are soliciting information on other pollution-prevention techniques of which we are not aware, and information on the maximum level of emissions reductions achievable by these techniques.
The general concept of an alternative would be a facility that elects to use this option to submit notification to the appropriate permitting authority of their intent. The facility would then have to submit a plan to meet specific emissions reductions through pollution prevention. The plan would outline the techniques they intend to use, the research and testing required, and a schedule with annual milestones for achieving the goal.
In the next step, the facility would calculate an overall emission factor for all processes at the facility that are required to meet the 95 percent emission reduction.
Once a facility has determined a base year emission factor, they would be required to incorporate the pollution-prevention techniques outlined in the plan and make annual reports of progress. If a facility was unable to meet an interim milestone, they would be required to provide an updated plan within a specified time.
We are also soliciting comment on determination of a base year and baseline emission factor, and reporting requirements.
For existing sources, an above-the-floor control level was evaluated which was based on the new source floor for sources with emissions of 100 tpy or more. This above-the-floor control level would require 95 percent control of HAP emissions from all open molding, centrifugal casting, continuous lamination/casting, pultrusion, SMC manufacturing, and resin mixing/BMC manufacturing.
We then looked at several options. These were selecting the floor level of control as MACT for all facilities, selecting the above-the-floor level as MACT for all facilities, or choosing an alternative where facilities at or above a certain HAP emissions quantity would meet the above-the-floor level, and the rest would meet the floor. In looking at this third alternative, we also evaluated different HAP emission thresholds.
The option of having all facilities meet the above-the-floor level of control had an incremental cost of $4,300 per additional ton of HAP emission reduction. The economic analysis for this option indicated that 126 small businesses would be impacted at a level of 3 percent of sales or more, and there were 90 projected closures of small businesses. Because of the impacts on small businesses, we believe that the benefit of controlling all existing sources to this level is not commensurate with the economic impacts. Therefore, we are not proposing this alternative as MACT.
We then looked at a combination of the MACT floor for facilities below a specified HAP emissions quantity based on actual emissions prior to any add-on controls, and the above-the-floor level of control for larger-emitting facilities. We also examined the impacts from the standpoint of small businesses and their ability to obtain the capital to purchase pollution control equipment. We believe that the capital costs of the above-the-floor option for most small businesses would be prohibitive because they do not have the same access to capital as large businesses. The available data indicate that at a threshold of 250 tpy, none of the existing small businesses in the data base would be impacted significantly by the above-the-floor control level. For this reason, we determined MACT for small businesses to be the floor for facilities that emit less than 250 tpy of HAP, and the above-the-floor control level for facilities that emit 250 tpy or more. For large businesses, we determined MACT to be the floor for facilities that emit less than 100 tpy of HAP, and the above-the-floor control level for facilities that emit 100 tpy or more of HAP. The incorporation of the 250 tpy threshold for small businesses was one of the recommendations of the SBAR Panel, and the economic impacts of the selected option are reasonable.
Industry representatives independently developed costs for add-on controls and submitted them to the Agency. Their analysis is in the docket for this proposed rulemaking. The SBAR Panel recommended that we reconsider our estimates of costs for add-on controls in light of that study. The
We did not identify an above-the-floor option for the following operations: closed molding, polymer casting, and equipment cleaning. We were able to find no examples where any closed molding process was controlled using add-on controls. Therefore, we believe it is not technically and economically feasible to use add-on controls for closed molding processes. We do not believe it is technically feasible to use add-on controls for equipment cleaning operations. In any case, application of the floor level of control we are proposing would eliminate HAP-containing cleaners, except for cases where cured resin has to be removed from application equipment. This floor level of control would achieve close to 100 percent HAP emissions reductions.
For new sources, we examined an above-the-floor option of requiring all sources to meet the 95 percent control requirement for open molding, centrifugal casting, continuous lamination/casting, pultrusion, SMC manufacturing, and resin mixing/BMC manufacturing. We determined that, even if we could resolve the issues surrounding the performance of add-on control devices at the smaller-emitting sources, the incremental cost would be $15,000 per ton of additional HAP emissions reduction. For this reason, we chose the floor level of control as MACT for new sources.
We also considered an even more stringent above-the-floor control level for both existing and new sources. This control level would require facilities to use add-on controls to meet a 95 percent HAP emission reduction, and also require them to incorporate pollution-prevention techniques such as the use of low HAP resins and gel coats, and nonatomized resin application techniques. As previously discussed, the benefits of this approach would be that by incorporating the pollution-prevention measures in addition to the add-on control, the overall HAP emissions reduction would be increased. In addition, the potential for worker exposure in these situations would be reduced. However, we determined that this control level would result in approximately a 2 percent incremental HAP emissions reduction compared to the above-the-floor control level based on a 95 percent emissions reduction alone. The incremental cost of a control level that combines 95 percent HAP emissions reductions and pollution-prevention measures would be $36,900 per ton of additional HAP emissions reduction. Though there may be worker exposure benefits, we did not include this above-the-floor control level in this proposed rule. This possibility is still under consideration, and we are requesting comment. We also request that commentors provide any available data on worker exposure that would allow us to quantify the additional worker exposure benefits of incorporating pollution-prevention requirements with the 95 percent control requirements.
We did not identify an above-the-floor option for new sources for the following operations: Closed molding, polymer casting, and equipment cleaning for the same reasons as discussed above for existing sources.
We also examined an above-the-floor control option for existing sources based on pollution prevention. As was the case with the new source MACT floor, we are unable at this time to develop an alternative that we believe meets the statutory requirements of MACT. However, we are specifically soliciting comments on pollution-prevention techniques that could be used in lieu of the above-the-floor alternative as were discussed in the section on new source floors.
In addition to the previous discussion, we also evaluated non-air quality environmental impacts of these above-the-floors options. These impacts are discussed in section IV, Summary of Environmental, Energy, and Economic Impacts.
These proposed NESHAP would not regulate mold sealing and release agents and mold stripping and cleaning solvents because we were unable to set MACT floors or determine MACT for these operations. In both cases, the information and data available to us suggest that mold maintenance practices, part shape and size, and production schedules determine emissions more than the HAP content of these materials. We do not have sufficient data to identify and prescribe work practices to reduce emissions from these operations. Therefore, these proposed NESHAP do not require emissions reductions for these materials.
For mold stripping and cleaning solvents, the amount of HAP used per unit of mold surface area applied depends on facility-specific mold maintenance practices and production requirements. These may include mold cycle time, how often the mold is used, and whether the mold is stored indoors or outdoors. The size of the part may also influence mold maintenance. We do not have sufficient data to identify those differences in production requirements or work practices that determine mold cleaning solvent usage. Therefore, we cannot identify a MACT floor or MACT.
The CAA instructs EPA to establish a compliance date or dates for existing sources that will provide for compliance “as expeditiously as practicable, but in no event later than 3 years after the effective date.” For existing sources, we are proposing a compliance date 3 years from [DATE OF PUBLICATION OF THE FINAL RULE IN THE
Existing sources complying with the point value limits, which is a pollution-prevention approach, will need to make changes in application equipment and raw materials. We believe these sources need the full 3-year period provided by the CAA in order to evaluate the effect of these changes on their production processes, particularly because they may need to try out different resins. In addition, we believe that providing the maximum amount of allowable time will provide more sources the opportunity to change their raw materials and production techniques so that each resin and gel coat can meet the MACT specific to each process type rather than averaging the HAP content
We are also proposing a 3-year compliance date for existing sources that must use add-on controls. We believe the full 3 years provided by the CAA is necessary for these sources as well to allow sufficient time for them to design, purchase, install, and work out operational problems that occur in trying to start up a new control device. In addition, if an existing source's emissions exceed one of the thresholds in the proposed rule that requires an add-on control device to comply, the 3-year period would provide sufficient time to evaluate whether there are pollution-prevention approaches that would get them below the threshold. We encourage the use of pollution-prevention as a control approach, and pollution prevention could be a significant cost savings over add-on controls for these sources.
The CAA instructs EPA to establish compliance dates for new sources that will provide for compliance upon start up, or the effective date of the final rule, whichever is later. These are the dates we are proposing in this proposed rule.
New and existing sources that comply by meeting point values on a 12-month rolling average must initiate collection of these data on the compliance date. New and existing sources that comply using add-on control devices must conduct the required performance testing within the 180-day time period as specified in the General Provisions to part 63.
We are also proposing to provide sources 3 years to comply from the time their HAP emissions reach or exceed the applicability thresholds requiring the installation of add-on controls, if these HAP emissions increase after their initial compliance date. We are providing this compliance time for sources under these circumstances because, as explained previously, we believe this is the necessary amount of time to get these control devices installed and operational.
We decided to offer several forms for complying with the proposed NESHAP. The purpose of multiple forms is to provide the flexibility to comply in the most cost-effective and efficient manner. We considered the following factors in selecting the form of the proposed NESHAP:
• The form should allow for multiple compliance techniques for the various types of facilities in the industry.
• The form should simplify compliance and ensure that the cost of compliance is not excessive.
• The form should be enforceable.
The form of these proposed NESHAP is based on a combination of emission limits (point values or percent reduction), equipment standards, and work practice standards.
These proposed NESHAP for open molding operations and centrifugal casting operations are based on point values which are in units of pounds of HAP per ton of resin used. The point value development has been previously described. This form was chosen over an absolute emission limit because it accurately determines the amount of pollution-prevention control a source has incorporated in its process, but does not require a facility to perform emission testing. This form also allows for averaging across open molding processes or across centrifugal casting processes. This means that a source has the option to over-control some operations, under-control others (relative to the limit for that individual process), but still meet the overall limit for such operations combined. This allows a source to have additional flexibility in meeting the proposed standards.
The emission limits for open molding and centrifugal casting for new sources are based on a percent reduction using add-on controls. However, we have provided an alternative standard for new sources also based on point values. These point values were determined by applying the required percent reduction requirement to the existing source MACT floors. The new source floor is based on a control efficiency, and the facilities that have these controls do not have examples of every possible type of open molding or centrifugal casting process. Therefore, we were not able to use the best-controlled sources to directly determine a point value that is equivalent to the 95 percent emissions reductions requirement for all operations. For operations where we could directly determine a point value equivalent, the approach of using existing source floors and applying 95 percent control is slightly more stringent. Therefore, we believe applying this approach to all open molding and centrifugal casting operations will produce a limit that is no less stringent, while providing opportunities for facilities to incorporate pollution prevention into their process, meet a percent reduction requirement less than 95 percent, but still meet the new source floor.
The form of the standards for new open molding, centrifugal casting, SMC manufacturing, and resin/mixing/BMC manufacturing, and the standards for new and existing sources for pultrusion and SMC manufacturing are based on a percent reduction. These standards were all developed from facilities using add-on controls. It is possible to design a control device to meet a specified percent reduction. But based on the data available, it was not possible to determine an uncontrolled emission factor for open molding, centrifugal casting, SMC manufacturing, and mixing/BMC manufacturing that was generally applicable. Therefore, we could not develop a standard based on an emission factor. For continuous lamination/casting, we were able to develop an absolute emission limit based on the facilities that set the floor. These absolute emission limits are presented as alternatives to the percent reduction limits. In the case of pultrusion operations, there are alternative standards based on wet-area enclosures or direct die injection. Emission testing has determined that using this equipment as specified in the proposed rule will achieve the percent reductions specified in the NESHAP.
Section 112(h) of the CAA states that “* * * if it is not feasible in the judgement of the Administrator to prescribe or enforce an emission standard for control of a hazardous air pollutant or pollutants, the Administrator may, in lieu thereof, promulgate a design, equipment, work practice, or operational standard, or combination thereof * * *” Section 112(h)(2) further defines the phrase “not feasible to prescribe or enforce an emission standard” as any situation in which “* * * a hazardous air pollutant or pollutants cannot be emitted through a conveyance designed and constructed to emit or capture such pollutant, * * * or the application of measurement methodology to a particular class of sources is not practicable due to technological and economic limitations.”
The emission limits for equipment cleaning and storage at new and existing sources are based on work practice and equipment standards. The reason for choosing work practice and equipment standards for storage is that storage areas may be located outside the rest of
The standard for existing pultrusion facilities is based on the equipment standard combined with a work practice. We have proposed the standard as a percent reduction to allow the use of add-on controls. However, we do not believe it would be technologically or economically feasible to actually test facilities that choose to use a wet-area enclosure or direct die injection.
The limits for SMC and resin mixing/BMC at existing facilities are also based on work practices or equipment standards. We have no data to determine a specific percent reduction to the work practices for these operations. Therefore, we could not set a specific emission limit.
Cleaning operations may take place outside the regular production area. It would not be technologically or economically practicable to perform emission testing for cleaning operations.
As a reinforced plastic composites manufacturer, we are proposing that you could show compliance with the proposed NESHAP on a 12-month, rolling-average basis. A 12-month rolling average is determined at the end of each month by calculating a weighted average actual point value based on that month's resin and gel coat use, and a weighted average floor value based on that month's resin and gel coat use. The floor must also be calculated because the floors for different operations are not the same, and the weighted average floor may change based on the relative amounts of resin used in different operations. You would then sum the current month's weighted averages (floor and actual) with the monthly averages for each of the previous 11 months, divide the resulting sums by 12, and compare the two results. If the actual 12-month weighted average point value is less than or equal to the floor 12-month weighted average point value, you are in compliance.
We believe a 12-month averaging time provides a balance between operating flexibility and enforceability of the proposed standards. The 12-month period is sufficiently long so that you can identify potential compliance problems and change your operations in time to maintain compliance. The rolling-average aspect provides an enforceable emission limit 12 times per year.
Many reinforced plastic composites manufacturers already track material usage monthly to comply with State regulations and permit requirements, so we believe monthly tracking is consistent with current practice. Tracking on a more frequent basis would be unnecessarily burdensome for this particular industry. Reinforced plastic composites manufacturers need a 12-month rolling-average period to respond to both short-term variations in HAP content that are inherent in all chemical products, and to account for short-term needs for higher-HAP materials due to variations in product mix.
In order to calculate a 12-month rolling average, facilities must have 12 months of data. For this reason, we are proposing to allow facilities that elect to use a 12-month rolling average to demonstrate compliance 12 months and 30 days after the compliance date. This includes the time to generate 12 months of data to determine the average plus 30 days to perform the necessary calculations and generate the compliance report. If we were to establish a demonstration date prior to this, as a practical matter, facilities would have to actually achieve compliance prior to the compliance date. For reasons previously discussed, we believe it is reasonable and appropriate to give facilities the maximum time allowed by the CAA to comply.
The proposed NESHAP have several options for achieving compliance. For open molding and centrifugal casting, this includes meeting a specified point value for existing sources, or a percent reduction or point value for new sources. For most other processes, you achieve compliance by using an enclosure and add-on control device to meet a percent reduction requirement or an absolute emission limit.
In order to calculate a point value, under this proposed rule, you must determine the HAP content of the raw material. The method to determine material HAP content is the use of the Material Safety Data Sheets (MSDS) or other product specification sheets provided by the material manufacturer. We chose not to propose requiring testing of the material. The data used to develop the standards were mainly based on MSDS; therefore, we believe it is reasonable that MSDS be used to determine compliance.
Under the proposed NESHAP, if you chose to use an enclosure and add-on control device, you would have to determine the capture efficiency of the enclosure and measure the HAP from the control device. To determine the capture efficiency of the enclosure, you would use EPA Method 204 (Criteria for and Verification of Permanent or Temporary Total Enclosure). If the enclosure meets the criteria in EPA Method 204 for a permanent total enclosure, then you could assume that its capture efficiency is 100 percent. If the enclosure is not a total enclosure, then you would build a total temporary enclosure around it that meets the definition of a total temporary enclosure in EPA Method 204. You would then have to measure emissions from both the control device and the total temporary enclosure and use the combined emissions to determine compliance.
To measure HAP, you would be able to use either EPA Method 18 (Measurement of Gaseous Organic Compound Emissions by Gas Chromatography) to measure the sum of individual species of HAP, or EPA Method 25A (Determination of Total Gaseous Organic Matter Concentration Using a Flame Ionization Analyzer) for total hydrocarbons (THC) as a surrogate for total HAP. The EPA Method 25A would allow you the flexibility to use a simpler method than EPA Method 18 which does not speciate HAP in cases where measuring THC is sufficient to demonstrate compliance. You could measure THC as a surrogate for total HAP if most of the THC emitted from an enclosure were HAP, such as styrene and MMA from resin and gel coat operations. For compliance determinations, the EPA will assume that all THC measured with EPA Method 25A are HAP.
We have not included in this proposed rule a test method for determining the effectiveness of vapor suppressed resins. A draft protocol entitled “Vapor Suppressant Effectiveness Test Protocol,” dated April 7, 1999, has been developed by industry and is available for review in the docket for this proposed rule. The draft protocol is insufficiently detailed for inclusion in this proposed rule. We are currently requesting additional details and soliciting comment on the test protocol or an alternate test protocol.
Which monitoring and recordkeeping requirements you would meet depend
This section describes how to comply with emission limits based on point values, emission averaging provisions, equipment and work practice standards, and the emission limit for an add-on control device.
For all operations subject to HAP content limits, we are proposing four tasks: monitor and record the HAP content of the material used, monitor and record the monthly consumption of the material, monitor and record which operations use the material, and record the computations to show that the weighted average point value over the past 12 months meets the proposed standards.
The SBAR Panel recommended that we look for alternatives to simplify reporting and recordkeeping. We have identified two alternatives we believe simplify the reporting and recordkeeping process. The first is that an owner and operator may use purchase records to determine monthly consumption. However, an owner and operator can track actual material flows to each process if desired. We believe this is reasonable because facilities have no financial incentive to keep significant inventories of raw material on hand, and we have no evidence that keeping large amounts of raw material on hand is a common practice. Therefore, purchases and actual consumption should track fairly closely. We are requiring that the owner and operator have a reasonable method to estimate the amounts of each resin used by a specific operation. The second alternative applies where all the materials used in an operation result in a point value that meets the emission limit, in which case, an owner and operator only need to record HAP content and the resulting point value and do not need to track monthly consumption of each individual material.
To comply with the averaging provisions for open molding operations and centrifugal casting operations, you must monitor and record HAP content as well as how use of the material is split between different operations, and you must record the computations needed to show compliance. You must use these data as well as the MACT model point value equations in the proposed NESHAP to calculate the point values in that operation for the past 12 months. Compliance is then determined relative to the allowable weighted average point value calculated for those operations for the past 12 months. Compliance would be calculated monthly, and monthly purchase records may be used to determine resin and gel coat use.
The proposed NESHAP require resin and gel coat mixing containers to be fitted with covers that have no visible gaps. You will be required to inspect container covers each month to ensure the covers are in place and properly maintained. You must record the results of the inspections. The inspections should be sufficient to ensure that the covers are in place and properly maintained. We believe monthly inspections are a reasonable interval because the nature of failure in these pieces of equipment is likely due to wear and tear and not a sudden failure. Longer time periods between inspections, however, would allow a failure to go too long before being repaired.
The proposed NESHAP for production resin and tooling resin requires most manufacturers to use nonatomized resin application methods to comply. These methods include flowcoaters and pressure-fed resin rollers, among others. We could identify no parameters to monitor whether these methods are being used. Rather, compliance through the use of these methods would be determined during enforcement inspections. As long as flowcoaters, pressure-fed resin rollers, or other similar devices are installed and operated according to manufacturer's specifications, they will comply with the requirements to use nonatomized resin application methods.
The requirements for enclosures and add-on control devices in the proposed NESHAP are consistent with other air quality regulations that require capture and control of emissions. They are the minimum needed to demonstrate that the capture and control system is operated properly.
We are proposing that you must initially demonstrate compliance with the emission limit by demonstrating that the enclosure is a total enclosure or by also measuring the fugitive emissions that escape the enclosure. You would also need to measure the efficiency of the add-on control using EPA Method 25A for THC (as a surrogate for HAP) or EPA Method 18 for HAP. The EPA Method 18 measures individual HAP that you sum to calculate total HAP.
After the initial compliance test, we are proposing that you must monitor control device parameters to demonstrate that the control device continues to be operated as it was during the initial test. In the case of thermal oxidizers, you would need to monitor and record combustion temperature every 15 minutes both during and after the performance test. We are proposing that you must calculate the average temperature achieved during the test. After the test, you would need to maintain the average temperature at or above the temperature achieved during the performance test. Temperature monitors and recorders are standard features on thermal oxidizers. For other devices we are proposing that you must determine appropriate parameters to monitor and receive our approval to use these parameters.
We believe that the proposed notices and reports are the minimum needed to determine if you are subject to the proposed NESHAP and whether you are in compliance. We are proposing that you must submit an initial notification stating that you are subject to the proposed NESHAP. After the compliance date for your facility, you would need to submit a notification of your compliance status. You would also need to submit semiannual reports of your compliance status. If you have an add-on control device and you become out of compliance, we are proposing that you must submit quarterly reports of your compliance status until we approve a request to return to semiannual reporting.
If your facility is a new source, we are proposing that you have additional preconstruction notification requirements. You would also have additional notification and reporting requirements if you use an add-on control device, including notifications and reports for the control device performance test. These proposed notification and reporting requirements are consistent with those specified in the General Provisions. We believe that these requirements are the minimum needed for us to determine compliance for sources with add-on control devices.
The SSM plan specified by the General Provisions will be required only for sources using an add-on control device and will apply only to the add-on control device. For operations not using a control device, the nature of the materials and equipment used to comply with the proposed Reinforced Plastic Composites Production NESHAP is such that malfunctions will not lead to excess emissions.
The purpose of this section is to highlight particular issues of concern to the EPA or to other parties. We solicit comments on these issues, along with data to support the comments.
The proposed rule requires that certain new and existing sources control HAP emissions by 95 percent. In order to meet this requirement, facilities will likely have to capture 100 percent of their emissions from the affected processes and route these emissions to an add-on control device. We are soliciting data on the technical feasibility of permanent total enclosures (PTE); factors that affect the feasibility of PTE such as product size, operation grouping, and vent stream concentrations and air flow from the processes where capture systems are used; and interactions of these requirements with OSHA rules. For example, the feasibility of 100 percent emissions capture using PTE is based on data from two facilities. We believe that the process operations in these facilities are representative of the industry as a whole. However, we are soliciting comment on types of facilities that may not be able to apply PTE, along with data to support these comments. We solicit data on a facility's ability to maintain and operate add-on controls. We are especially interested in cost and design data from facilities in this industry that have successfully applied add-on controls. Data on control device inlet air flows and HAP concentrations combined with worker exposure monitoring data would be especially useful. We solicit data on typical operating hours in this industry, particularly in relation to the size of facilities and their operations (e.g., resin use or number of employees) since operating hours affect cost effectiveness and the number of start-ups and shutdowns.
The proposed rule sets different thresholds for existing source requirements at small versus large businesses, above which control of HAP emissions by 95 percent is required. The higher threshold for small businesses is based on concerns that it is more difficult for small businesses to raise the necessary capital to purchase add-on controls to comply with the 95 percent control level. We solicit comments on this conclusion, along with data on capital availability for large and small businesses and the impact of this threshold on large businesses. We solicit information and data on other factors to consider in evaluating control requirements more stringent than the MACT floor, including data on costs to the industry.
We believe that we have captured the full range of processes and products in our proposed operation groups. We request comments with supporting data on any processes or products that might not be adequately represented. Along these lines, we have specifically provided separate process groups for products with a Class I smoke and fire rating, and have defined high strength products as part of the corrosion resistant process group because of specific product requirements that require specialized raw materials. We solicit comments on this approach and data on any additional processes or products that have unique properties that may require separate process groupings for MACT floor development.
This proposed rule contains point value equations for open molding and centrifugal casting. We are soliciting comments on the data and assumptions used to develop MACT point value equations, and information on other methods or emission models that could be used to rank facilities for the purposes of setting MACT.
We also solicit information on the adequacy or necessity of the monitoring, recordkeeping, and reporting requirements in this proposed rule. We specifically solicit comments on the recordkeeping and reporting burden estimates set forth in the Paperwork Reduction Act discussion in this preamble and information on ways to minimize respondent burden.
There are approximately 433 existing facilities manufacturing reinforced plastic composites that are major sources and would be subject to the proposed NESHAP. The rate of growth for the reinforced plastic composites industry is estimated to be 84 new facilities over the next 5 years.
The 1997 baseline HAP emissions from the reinforced plastic composites industry are approximately 22,200 tpy. The proposed NESHAP would reduce HAP from existing sources by 14,500 tpy, a reduction of 65 percent.
The proposed NESHAP would result in small increases in other air pollution emissions from combustion devices that will be installed in the next 5 years to comply with today's proposed rule. These increases result from both the combustion device directly, and estimated emissions that occur at electrical generating plants to generate the electricity necessary to operate the add-on controls and associated air handling equipment. These emissions are estimated to be 38 tpy of sulfur oxides (SO
We estimate that the proposed Reinforced Plastic Composites Production NESHAP will have no adverse water quality impacts. We do not expect anyone to comply by using add-on control devices or process modifications that would generate wastewater.
We estimate that the proposed NESHAP would decrease the amount of solid waste generated by the reinforced plastic composites industry by approximately 1,400 tpy. The decrease in solid waste is directly related to switching to nonatomized resin application equipment (i.e., flowcoaters and resin rollers). Switching to flowcoaters results in a decrease in overspray because of a greater transfer efficiency of resin from flowcoaters to the part being manufactured. A decrease in resin overspray consequently reduces the amount of waste from disposable floor coverings, cured resin waste, and personal protective equipment (PPE) for workers. Disposable floor coverings are replaced on a periodic basis to prevent resin buildup on the floor. We estimate that solid waste generation of floor coverings will decrease by approximately 360 tpy and that cured resin solid waste will decrease by approximately 1,040 tpy.
We project that the decreased overspray from flowcoaters will result in a decreased usage of PPE, which also consequently reduces the amount of solid waste. Workers who use flowcoaters typically wear less PPE than
Some facilities that switch from spray guns to flowcoaters may have a small increase of hazardous waste from the used flowcoater cleaning solvents. However, most facilities would not see an increase under this proposed rule, and the overall impact on the industry will be small relative to the solid waste reductions. Nearly all flowcoaters require resin and catalyst to be mixed inside the gun (internal-mix) and must be flushed when work is stopped for more than a few minutes. External-mix spray guns do not need to be flushed because resin is mixed with catalyst outside the gun. Facilities that switch from external-mix spray guns to flowcoaters will use more solvent. Solvent usage should not change at facilities switching from internal-mix spray guns to flowcoaters. The most common flushing solvents are acetone and water-based emulsifiers. Only a couple of ounces of solvent are typically needed to flush the mixing chamber and nozzle of flowcoaters and internal-mix spray guns.
We do not have adequate data to predict the potential solvent waste impact from switching to flowcoaters. The magnitude of the impact depends on the type of gun currently used (internal- or external-mix), the frequency of flushing, and the type of solvent used. However, because of the small amount of solvent used, and since most is allowed to evaporate, we believe the overall solvent waste increase will be small compared to the solid waste reductions.
We determined that the overall energy demand for operations in the Reinforced Plastic Composites Production source category could increase by 159 million standard cubic feet per year of natural gas, and 10 million kilowatt hours of electricity per year as a result of the proposed rule. We determined this net increase based on the additional energy demand for control devices installed to meet the proposed standards. No information for comparison is available on the baseline energy consumption for this source category.
We have estimated the capital costs for emission control equipment, including equipment such as open container covers, resin bath enclosures, capture systems, and control devices as $73.9 million for existing sources and $11.7 million for new sources. The capital costs include the costs to purchase and install the control equipment.
We have estimated that annual costs of the proposed rule are $26.0 million per year for existing sources and $3.2 million for new sources. Annual costs include fixed annual costs, such as reporting, recordkeeping and capital amortization, and variable annual costs such as natural gas. The estimated average cost of the proposed rule is $1,600 per ton of HAP emissions reduction for existing sources and $2,200 per ton of HAP emissions reduction for new sources.
As discussed elsewhere in this preamble, we will review in more depth the industry's analysis on the cost of this proposed rule following proposal. Where appropriate, we will make changes to our estimates of costs based on our review and on comments we receive, and make the results of our detailed review available in the public docket at promulgation.
The Agency conducted a detailed economic impact analysis to determine the market- and industry-level impacts associated with the proposed rule. We expect the aggregate price increase for reinforced plastic composites would be only 0.3 percent, or $0.01 per pound, as a result of the proposed standards. We project that directly affected producers would reduce total production by 0.8 percent, while producers not directly affected would increase their production by 0.3 percent. Markets for reinforced plastic composites used in general construction, corrosion-resistant products, and land transportation are expected to be more heavily impacted with price increases of up to 0.5 percent and reductions in directly affected domestic production of between 1 and 1.5 percent.
In terms of industry impacts, captive producers of reinforced plastic composites are expected to fully absorb their compliance costs, while merchant producers will attempt to pass through costs to their customers. Through the market impacts described above, the proposed NESHAP create both gainers and losers within the merchant segment. Some merchant facilities are projected to experience profit increases with the proposed rule; however, the majority that continue operating are projected to lose profits. Furthermore, the economic impact analysis indicates that 29 out of 299 merchant facilities (9.7 percent) and 73 out of 471 product lines (15.5 percent) at these facilities are at risk of closure because of the proposed NESHAP. All of the facilities determined to be at risk for closure are believed to be small businesses. More information on the measures we have taken to minimize these impacts may be found in the Regulatory Flexibility Act discussion in this preamble.
Based on the market analysis, the annual social costs of the proposed rule are projected to be $25.7 million. These costs are distributed across the many consumers and producers of reinforced plastic composites. Producers, in aggregate, are expected to bear $10.6 million annually in costs, with those directly affected by the proposed NESHAP losing $19.3 million and those not subject to the proposed NESHAP gaining $8.7 million. The consumers of reinforced plastic composites are expected to incur the remaining $15.1 million in costs associated with the proposed NESHAP. For more information, consult the docket for this project.
If you use an add-on control device(s) to control emissions, you will need to comply with certain provisions in 40 CFR part 63, subpart SS, for add-on controls. The standards in subpart SS cited by the proposed NESHAP are applicable to most sources using an add-on control device. The proposed NESHAP cite these sections in subpart SS rather than repeating them in the proposed regulatory text.
Under the operating permit program codified at 40 CFR parts 70 and 71, all major sources subject to standards under section 111 or 112 of the CAA must obtain an operating permit (See §§ 70.3(a)(1) and 71.3(a)(1)). Therefore, all major sources subject to these proposed NESHAP must obtain an operating permit.
Some reinforced plastic composites production facilities may be major sources based solely on their potential to emit even though their actual emissions are below the major source level. These facilities may choose to obtain a federally enforceable limit on their potential to emit so that they are no longer considered major sources subject to the proposed NESHAP.
There are currently NESHAP under development for proposal that will regulate coating of plastic parts and products. The SBAR Panel recommended that we consider the interaction of the Plastic Parts and Product NESHAP with today's proposed NESHAP. The Plastic Parts and Products NESHAP may potentially affect facilities that produce reinforced plastic parts and then apply a coating to the finished parts. We have coordinated with this project and have determined that there should be no overlap (i.e., specific operations covered by today's proposed NESHAP should not also be covered in the Plastic Parts and Products NESHAP). We have not determined any requirements of the proposed NESHAP that would overlap, conflict, or cause a duplication of effort.
Under Executive Order 12866 (58 FR 51735, October 4, 1993), we must determine whether a proposed regulatory action is “significant” and therefore subject to Office of Management and Budget (OMB) review and the requirements of the Executive Order. The Executive Order defines “significant regulatory action” as one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities;
(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.
Pursuant to the terms of Executive Order 12866, OMB has notified EPA that it considers this rulemaking a “significant regulatory action” within the meaning of the Executive Order. The EPA submitted this action to OMB for review. Changes made in response to suggestions or recommendations from OMB are documented and included in the public record.
The information collection requirements in this proposed rule have been submitted for approval to the OMB under the Paperwork Reduction Act, 44 U.S.C. 3501
These proposed NESHAP contain monitoring, reporting, and recordkeeping requirements. We believe that the proposed notices and reports are the minimum needed by us to determine if you are subject to the NESHAP and whether you are in compliance. We believe the proposed recordkeeping requirements are the minimum necessary to determine initial and ongoing compliance. Based on reported information, we would decide which reinforced plastic composites facilities and what records or processes should be inspected. The recordkeeping and reporting requirements are consistent with the General Provisions of 40 CFR part 63.
These proposed recordkeeping and reporting requirements are specifically authorized by section 114 of the CAA (42 U.S.C. 7414). All information submitted to us for which a claim of confidentiality is made will be safeguarded according to our policies in 40 CFR part 2.
The EPA expects these proposed NESHAP to affect a total of approximately 486 facilities over the first 3 years after promulgation of the rule. This includes 433 existing facilities, and 53 new reinforced plastic composites facilities will become subject to the proposed NESHAP during the first 3 years.
The estimated average annual burden for the first 3 years after promulgation of these proposed NESHAP for industry and the implementing agency is outlined below. You can find the details of this information collection in the “Standard Form 83 Supporting Statement for ICR No. 1976.01,” in Docket No. A-94-52.
Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.
An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. Control numbers for EPA's regulations are listed in 40 CFR part 9 and 48 CFR chapter 15.
Comments are requested on the Agency's need for this information, the accuracy of the provided burden estimates, and any suggested methods for minimizing respondent burden, including the use of automated collection techniques. Send comments on the ICR to the Director, Office of Environmental Information, Collection Strategies Division (2822), U.S. EPA, 1200 Pennsylvania Avenue NW, Washington, DC 20460; and to the Office of Information and Regulatory
Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”
This proposed rule does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. No reinforced plastic composites production facilities subject to these proposed NESHAP are owned by State or local governments. Therefore, State and local governments will not have any direct compliance costs resulting from this proposed rule. Furthermore, these proposed NESHAP do not require these governments to take on any new responsibilities. Thus, the requirements of section 6 of the Executive Order do not apply to this proposed rule. Thus, Executive Order 13132 does not apply to this rule.
In the spirit of Executive Order 13132, and consistent with EPA policy to promote communications between EPA and State and local governments, EPA specifically solicits comment on this proposed rule from State and local officials.
Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 6, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.”
This proposed rule does not have tribal implications. It will not have substantial direct effects on tribal governments, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes, as specified in Executive Order 13175, because we are not aware of any Indian tribal governments or communities affected by the proposed rule. Thus, Executive Order 13175 does not apply to this proposed rule.
In the spirit of Executive Order 13175, and consistent with EPA policy to promote communications between EPA and tribal governments, EPA specifically solicits additional comment on this proposed rule from tribal officials.
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, we must generally prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any 1 year. Before promulgating a rule for which a written statement is needed, section 205 of the UMRA generally requires us to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost effective, or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows us to adopt an alternative other than the least costly, most cost-effective, or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before we establish any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of our regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.
We have determined that this proposed rule does not contain a Federal mandate that may result in expenditures of $100 million or more by State, local, and tribal governments, in the aggregate, or the private sector in any 1 year. The total cost to the private sector is approximately $29.2 million per year. This proposed rule contains no mandates affecting State, local, or Tribal governments. Thus, today's proposed rule is not subject to the requirements of sections 202 and 205 of the UMRA.
We have determined that this proposed rule contains no regulatory requirements that might significantly or uniquely affect small governments because it contains no requirements that apply to such governments or impose obligations upon them.
The RFA generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of today's proposed rule on small entities, small entity is defined as (1) a small business ranging from 500-1,000 employees; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field. The table below presents the size threshold for small businesses by SIC Code.
In accordance with section 603 of the RFA, EPA prepared an initial regulatory flexibility analysis (IRFA) that examines the impact of the proposed rule on small entities along with regulatory alternatives that could reduce that impact. The IRFA is available for review in the docket and is summarized below.
Section 112 of the CAA requires us to list categories and subcategories of major sources and, in some cases, area sources of HAP and to establish NESHAP for the listed source categories and subcategories. Reinforced plastic composites production (major sources only) was included on the initial list of source categories published on July 16, 1992 (57 FR 31576). Major sources of HAP are those that have the potential to emit greater than 10 tpy of any one HAP or 25 tpy of any combination of HAP.
The objective of this proposed rule is to apply standards based on maximum achievable control technology to all major sources in this source category. The criteria used to establish MACT are contained in section 112 (d) of the CAA.
Based on SBA size definitions and reported sales and employment data, EPA identified 278 of the 356 companies owning reinforced plastic composites facilities as small businesses. Although small businesses represent almost 80 percent of the companies within the source category, they are expected to incur only 31 percent of the total industry compliance costs of $26.0 million. The average total annual compliance cost is projected to be $30,000 per small company as compared to the industry average of $70,000 per company. Under the proposed standards, the mean annual compliance cost, as a share of sales, for small businesses is 0.7 percent, and the median is 0.4 percent, with a range of 0.01 to 7.5 percent. The EPA estimates that 17 percent of small businesses (or 47 firms) may experience an impact greater than 1 percent of sales, but only 3 percent of small businesses (or 8 firms) may experience an impact greater than 3 percent of sales.
The Agency also performed an economic impact analysis (EIA) that accounted for firm behavior to provide an estimate of the facility and market impacts of the regulation. This industry is characterized by profit margins of 3 to 4 percent. Small businesses were found to have higher per-unit production costs under baseline conditions and incur slightly higher per-unit compliance costs. As a result of these factors, the economic analysis indicates that almost 10 percent of facilities owned by small business are at risk of closure because of this proposed rule.
Although any facility closures are cause for concern, the number of facilities at risk for closure would be the same if this proposed rule required only the MACT floor level of control for all facilities. The MACT floor is the least stringent level allowed by statute. As discussed below, this proposed rule contains a significant number of accommodations for small business. Without additional data, we do not believe we can make the proposed rule any less stringent and comply with the objectives of the CAA. In this regard, we have requested data and comment elsewhere in this preamble on issues relevant to this industry.
The EPA's efforts to minimize small-business impacts have materially improved today's proposal. Economic analysis of provisions under earlier consideration for inclusion in this proposed rule indicated greater impacts on small businesses than those proposed today. In earlier versions, almost 42 percent of the total industry compliance costs would have been incurred by small businesses (compared with 31 percent of costs incurred by small businesses in today's proposal). The average total annual compliance cost would have been roughly $50,000 per small company (compared with $30,000 in today's proposal). About 22 percent of small businesses (or 60 firms) would have experienced an impact greater than 1 percent of sales (compared with 17 percent of small businesses in today's proposal). And 7 percent of small businesses (or 19 firms) would have experienced impacts greater than 3 percent of sales (compared with 3 percent of small businesses in today's proposal). The reduction in small-business costs from earlier versions of this proposed rule is attributable to EPA's outreach and accommodation for small firms in keeping with both RFA and CAA requirements, including the conduct of a SBAR Panel, as discussed further below.
The proposed reporting and recordkeeping requirements for these small businesses include initial notifications, startup notifications and compliance reports. These requirements were discussed in more detail under the discussion of the Paperwork Reduction Act above. We estimate that 302 existing facilities owned by small businesses will be impacted by these requirements, and 53 new facilities will be impacted in the first three years. The professional
Provisions to minimize the reporting and recordkeeping requirements on small business have been incorporated into this proposed rule. These provisions include allowing: The facility to substantiate resin and gel coat HAP contents with Material Safety Data Sheets rather then requiring testing of each resin and gel coat; use of resin purchase records to determine resin use; and exemption of facilities that can demonstrate that all their resin and gel coats comply with the required HAP content limits from the requirement to keep records of resin use and calculate point value averages. These provisions have also been extended to all companies subject to today's proposed NESHAP.
These facilities may also be subject to the NESHAP being developed for plastic parts and products. There should be no duplication of effort as a result of this proposed rule and the Plastic Parts and Products NESHAP being developed because these NESHAP will cover different operations. Facilities subject to this proposed rule are also subject to emissions estimate reporting under the TRI requirements. In this proposed rule, we could determine no ways to combine TRI and the reporting requirements of the proposed NESHAP because the objectives and statutory authorities of these requirements are different. However, we invite comments from all interested parties on ways to combine these reports and still meet the statutory requirements of the CAA.
As indicated above, we have incorporated significant alternatives into the proposed rule to minimize the impact on small business but still meet the objectives of the CAA.
As required by section 609(b) of the RFA, EPA conducted outreach to small entities and convened a SBAR panel to review advice and recommendations from representatives of the small entities that potentially would be subject to the proposed rule requirements. The panel convened on April 6, 2000 and was comprised of representatives from OMB, the SBA Office of Advocacy, the EPA Small Business Advocacy Chair, and the Emission Standards Division of the Office of Air Quality Planning and Standards of EPA. The panel solicited advice from 17 small entity representatives (SER) from a cross-section of the different industry sectors likely to be directly regulated by this action. On April 18, 2000, the panel distributed a package of descriptive and technical materials explaining the rule-in-progress to the SER. On May 2, 2000, the panel met with the SER to hear their comments on preliminary options for regulatory flexibility and related information. The panel also received written comments from the SER in response to both the outreach materials and the discussions at the meeting.
Consistent with RFA/SBREFA requirements, the panel evaluated the assembled materials and small-entity comments on issues related to the elements of the IRFA. A copy of the panel report is included in the docket for this proposed rule.
The panel considered numerous regulatory flexibility options in response to concerns raised by the SER. The major concerns included the affordability and technical feasibility of add-on controls, the resin and gel coat HAP contents required to meet some of the MACT floors, and the regulatory treatment of speciality products.
These are the major panel recommendations and EPA's response in today's proposal:
• Recommend setting higher thresholds than EPA had initially considered for requirements to use add-on controls.
• Recommend setting the new source floor for small-owned sources at the level of the existing source floor.
• Recommend establishing separate floors for speciality products.
• Explore pollution-prevention alternatives to add-on controls.
• Recommend allowing individual facilities to use the same resin in all resin application processes.
• Reconsider the resin HAP content requirement for tooling resins.
• Recommend separate floors for white and non-white gel coats.
• Reconsider the Agency's estimates of the cost of add-on controls.
• Recommend grouping high-strength applications with corrosion-resistant operations.
Detailed information on all these recommendations is contained in the panel report in the docket for this proposed rule.
Section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) of 1995 (Public Law No. 104-113; 15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in their regulatory and procurement activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, business practices) developed or adopted by one or more voluntary consensus bodies. The NTTAA directs EPA to provide Congress, through annual reports to OMB, with explanations when an agency does not use available and applicable voluntary consensus standards.
This proposed rulemaking involves technical standards. The EPA proposes in this rule to use EPA Methods 1, 1A, 2, 2A, 2C, 2D, 2F, 2G, 3, 3A, 3B, 4, 18, 25, 25A, 204, and 204B, C, D, E.
The one consensus standard, ASTM D6420-99, Standard Test Method for Determination of Gaseous Organic Compounds by Direct Interface Gas Chromatography-Mass Spectrometry (GC/MS), is appropriate in the cases described below for inclusion in this proposed rule in addition to the currently available EPA Method 18 codified at 40 CFR part 60, appendix A.
Similar to EPA's performance based Method 18, ASTM D6420-99 is also a performance based method for measurement of gaseous organic compounds. However, ASTM D6420-99 was written to support the specific use of highly portable and automated GC/MS. While offering advantages over the traditional Method 18, the ASTM method does allow some less stringent criteria for accepting GC/MS results than required by Method 18. Therefore, ASTM D6420-99 is a suitable alternative to Method 18 where: (1) The target compound(s) are those listed in Section 1.1 of ASTM D6420-99, and (2) the target concentration is between 150 parts per billion (volume) and 100 ppm(v).
For target compound(s) not listed in Table 1.1 of ASTM D6420-99, but potentially detected by mass spectrometry, the regulation specifies that the additional system continuing calibration check after each run, as detailed in section 10.5.3 of the ASTM method, must be followed, met, documented, and submitted with the data report even if there is no moisture condenser used or the compound is not considered water soluble.
For target compound(s) not listed in Table 1.1 of ASTM D6420-99, and not amenable to detection by mass spectrometry, ASTM D6420-99 does not apply.
As a result, EPA proposes to incorporate by reference (IBR) ASTM 6420-99 into 40 CFR 63.14 for application with proposed subpart WWWW of part 63. The EPA will also cite Method 18 as a gas chromatography (GC) option in addition to ASTM D6420-99. This will allow the continued use of other GC configurations.
In addition to the voluntary consensus standards EPA proposes to use in this proposed rule, the search for emissions monitoring procedures identified 17 other voluntary consensus standards. The EPA determined that 13 of these 17 standards identified for measuring emissions of the HAP or surrogates subject to emission standards in the proposed rule would not be practical due to lack of equivalency, detail, and/or quality assurance/quality control requirements. The remaining four of the 17 consensus standards identified are under development or under EPA review. Therefore, we do not propose to use these voluntary consensus standards in this proposed rulemaking. More information on the reasons we chose not to propose to use these standards is available in the docket for this proposed rule.
The EPA takes comments on proposed compliance demonstration requirements in this proposed rulemaking and specifically invites the public to identify potentially applicable voluntary consensus standards. Commentors should also explain why this proposed rule should adopt these voluntary consensus standards in lieu of or in addition to EPA's methods. Emission test methods and performance specifications submitted for evaluation should be accompanied with a basis for the recommendation, including method validation data and the procedure used to validate the candidate method (if method other than Method 301, 40 CFR part 63, appendix A was used).
Table 6 of proposed subpart WWWW lists the EPA test methods and performance standards. Most of the standards have been used by States and industry for more than 10 years. Nevertheless, under § 63.7(f), the proposal also allows any State or source to apply to EPA for permission to use an alternative methods in place of any of the EPA testing methods or performance standards listed in the proposed NESHAP.
Executive Order 13045 (62 FR 19885, April 23, 1997) applies to any rule that: (1) Is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that we have reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.
The EPA interprets Executive Order 13045 as applying only to those regulatory actions that are based on health or safety risks, such that the analysis required under section 5-501 of the Executive Order has the potential to influence the regulation. This proposal is not subject to Executive Order 13045 because it is based on technology performance and not on health or safety risks.
Environmental protection, Air pollution control, Hazardous air pollutants, Incorporation by reference, Reporting and recordkeeping requirements, Volatile organic compounds.
For the reasons stated in the preamble, title 40, chapter I, part 63 of the Code of the Federal Regulations is proposed to be amended as follows:
1. The authority citation for part 63 continues to read as follows:
42 U.S.C. 7401
2. Section 63.14 is proposed to be amended by adding paragraph (b)(21) to read as follows:
(b) * * *
(21) ASTM D6420-99, Standard Test Method for Determination of Gaseous Organic compounds by Direct Interface Gas Chromatography-Mass spectrometry, IBR approved for § 63.5798 and § 63.5850.
3. Part 63 is proposed to be amended by adding subpart WWWW to read as follows:
This subpart establishes national emission standards for hazardous air pollutants (NESHAP) for reinforced plastic composites production. This subpart also establishes requirements to demonstrate initial and continuous compliance with the emission standards.
You are subject to this subpart if you own or operate a reinforced plastic composites production facility that is located at a major source of hazardous air pollutants (HAP) emissions. Reinforced plastic composites production consists of operations in which reinforced and/or nonreinforced plastic composites or plastic molding compounds are manufactured. These operations use thermoset resins and/or gel coats that contain styrene and/or methyl methacrylate to produce plastic composites, which contain materials designed to enhance the chemical, physical, and/or thermal properties of the product. Reinforced plastic composites production also includes cleaning, mixing, and material storage associated with the production of plastic composites. Facilities that only repair previously manufactured reinforced plastic composites are not covered by this subpart.
(a) This subpart applies to each new or existing affected source at reinforced plastic composites production facilities.
(b) The affected source consists of all parts of your facility engaged in the following operations: Open molding, closed molding, centrifugal casting, continuous lamination, continuous casting, polymer casting, pultrusion, sheet molding compound (SMC) manufacturing, bulk molding compound (BMC) manufacturing, mixing, cleaning of equipment used in reinforced plastic composites manufacture, material storage, any other plastic composites operations.
(a) A reinforced plastic composites production facility is a new affected
(1) You commence construction of the affected source after August 2, 2001.
(2) When you commence construction, no other reinforced plastic composites production affected source exists at that site.
(b) For the purposes of this subpart, an existing affected source is any affected source that is not a new affected source.
The model point value is a number calculated using the equations in Table 1 to this subpart. Equations are available for each open molding operation and centrifugal casting operation. The model point values have units of pounds (lbs) of HAP per ton of resin or gel coat applied. Point values are used in this subpart to determine compliance with certain emission limits in Tables 3 and 5 of this subpart. The model point values are surrogates for emissions, and the model point value equations are used only for determining compliance with this subpart. The model point value equations cannot be used in place of emission factor equations to demonstrate compliance with other regulations.
To determine your facility's HAP emissions, you must use the procedures in either paragraph (a) or (b) of this section and calculate the combined HAP emissions in tpy from the following operations: Open molding, centrifugal casting, continuous lamination, continuous casting, pultrusion, sheet molding compound manufacturing, mixing, and bulk molding compound manufacturing.
(a) For existing facilities, you may use the procedures in either paragraph (a)(1) or (2) of this section.
(1)
(2)
(b) For new facilities, calculate a weighted average emission factor on a lbs/ton of resin and gel coat basis. Base the weighted average on your projected operation for the 12 months subsequent to facility startup. Multiply the weighted average emission factor by projected resin use over the same period. You may calculate this emission factor based on the point value equations in Table 1 of this subpart, or you may use any emission factor approved by us, such as factors from AP-42, or emission test data from similar facilities. This calculation must be repeated and reported annually.
(a) You must initially comply with the standards in this subpart by the dates specified in Table 2 to this subpart. Facilities meeting an emissions standard based on a 12-month rolling average must begin collecting data on the compliance date in order to demonstrate compliance.
(b) If your facility is a new affected source and emits less than 100 tpy of HAP at the time of initial compliance with this subpart, and subsequently increases its actual HAP emissions to 100 tpy or more, then your facility must subsequently meet the standards in § 63.5805(d). You must be in compliance with these more stringent standards within 3 years of the date your facility meets or exceeds the 100 tpy threshold.
(c) If your facility is an existing affected source and emits less than 250 tpy of HAP (if you are a small business) or less than 100 tpy of HAP (if you are not a small business) at the time of initial compliance with this subpart, and subsequently increases its actual HAP emissions to 250 tpy or more (small business) or to 100 tpy or more (non-small business), then your facility must subsequently meet the standards at § 63.5805(b). You must be in compliance with these more stringent standards within 3 years of the date your facility meets or exceeds the 250 tpy or 100 tpy threshold.
All facilities must meet the requirements of paragraphs (a) through (f) of this section that apply. There are options to meeting these standards described in §§ 63.5810 through 63.5830.
(a) If you have an existing facility that is a small business, as defined by the Small Business Administration's (SBA's) regulations at 13 CFR 121.201, and emits less than 250 tpy of HAP, or a facility that is not a small business and that emits less than 100 tpy of HAP from the combination of all open molding, centrifugal casting, continuous lamination/casting, pultrusion, SMC manufacturing, and mixing/BMC manufacturing, you must meet the annual average emission limits in Table 3 of this subpart and the work practice standards in Table 4 of this subpart that apply to you.
(b) If you have an existing facility that is a small business as defined by the SBA regulations at 13 CFR 121.201 and emits 250 tpy or more of HAP, or if you have a facility that is not a small business and emits 100 tpy or more of HAP from the combination of all open molding, centrifugal casting, continuous lamination/casting, pultrusion, SMC manufacturing, and mixing/BMC manufacturing operations, you must reduce the total HAP emissions from these operations by at least 95 percent by weight and meet any applicable work practice standards in Table 4 of this subpart that apply to you. As an alternative to meeting 95 percent by weight, you may meet the emission limits in Table 5 of this subpart. If you have a continuous lamination/casting operation, that operation may alternatively meet an emission limit of 1.47 lbs of HAP per ton of neat resin plus and neat gel coat plus applied.
(c) If you have a new facility that emits less than 100 tpy of HAP from the combination of all open molding, centrifugal casting, continuous lamination/casting, pultrusion, SMC manufacturing, and mixing/BMC manufacturing, you must meet the annual average emission limits in Table 3 of this subpart and the work practice standards in Table 4 of this subpart that apply to you.
(d) If you have a new facility that emits 100 tpy or more of HAP from the combination of all open molding, centrifugal casting, continuous lamination/casting, pultrusion, SMC manufacturing, and mixing/BMC manufacturing, you must reduce the total HAP emissions from these
(e) If you use an add-on control device to comply with this subpart, you must meet all requirements contained in 40 CFR part 63, subpart SS.
You must use one of the following methods in paragraphs (a) through (c) of this section to meet the standards in § 63.5805. The necessary calculations must be completed within 30 days after the end of the each month.
(a)
(1) Calculate your actual point values for each different process stream within each operation. Process streams within operations are different from each other if any of the following three characteristics vary: The neat resin plus or neat gel coat plus HAP content, the application technique, or the control technique. You must calculate the different process stream point values by using the appropriate model point value equations in Table 1 of this subpart for open molding and for centrifugal casting. If you want to use vapor suppressants to meet the point value for open molding, you must determine the vapor suppressant effectiveness by conducting testing to demonstrate the vapor suppressant effectiveness. If you want to use an add-on control device to meet the point value, you must determine the add-on control factor by conducting capture and control efficiency testing as indicated in Table 6 of this subpart. The point value calculated from the equations in Table 1 of this subpart is multiplied by the add-on control factor to calculate the point value after control. Use Equation 1 of this section to calculate the add-on control factor used in the model point value equations.
(2) Calculate your actual operation point value for each calendar month for each open molding operation and for each centrifugal casting operation by calculating the weighted average of the individual process stream point values within each respective operation. To do this, sum the product of your actual process stream point values and the amount of neat resin plus and neat gel coat plus used in each process stream and divide the numerator by the total amount of neat resin plus and neat gel coat plus used in the process streams. Use Equation 2 of this section to calculate your actual individual point value for each operation.
(b)
(1) Each month calculate the weighted average point value for your facility for that month to determine which point value you must meet. To do this, you must sum the product of the individual point values in Table 3 or 5 of this subpart, and the amount of neat resin plus or neat gel coat plus used in each operation and divide the numerator by the total amount of neat resin plus and neat gel coat plus used in the operation. Use Equation 3 of this section to calculate the weighted average point value.
(2) Each month calculate your actual weighted average point value. Do this by summing the product of your actual operation point values and the amount of neat resin plus and neat gel coat plus used in each operation and dividing the numerator by the total amount of neat resin plus and neat gel coat plus used in the operation groupings. You must calculate your actual individual point values for each operation as described in paragraphs (a)(1) and (2) of this section. Use Equation 4 of this section to calculate your actual weighted average point value.
(3) Calculate a 12-month weighted average floor point value and actual point value by summing the values calculated in paragraphs (b)(1) and (2) of this section with the values calculated in the previous 11 months and dividing the result by 12. If the actual value 12-month rolling average is less than or equal to the floor 12-month rolling average, then you are in compliance.
(c)
You must use one or more of the options in paragraphs (a) through (d) of this section to meet the standards in § 63.5805. Use the calculation procedures in § 63.5865.
(a)
(b)
(c)
(d)
You must use one or more of the options in paragraphs (a) through (c) of this section to meet the 95 percent emission reduction standard in § 63.5805.
(a)
(b)
(1) All the resin that is applied to the reinforcement is delivered directly to the die.
(2) No exposed resin is present except at the face of the die.
(3) Resin drip is captured in closed piping and recycled directly to the resin injection chamber.
(c)
You must use one or more of the options in paragraphs (a) through (d) of this section to meet the 60 weight percent emission limit in Table 3 of this subpart as required in § 63.5805.
(a)
(b)
(1) The enclosure must cover and enclose the open resin bath and the forming area in which reinforcements are pre-wet or wet-out and moving toward the die(s). The surfaces of the enclosure must be closed except for openings to allow material to enter and exit the enclosure.
(2) For pultrusion machines with a radio frequency pre-heat unit, the enclosure must extend from the beginning of the resin bath to within 12.5 inches or less of the entrance of the radio frequency pre-heat unit. If the stock that is within 12.5 inches or less of the entrance to the radio frequency pre-heat unit has any drip, it must be enclosed. The stock exiting the radio frequency pre-heat unit is not required to be in an enclosure if the stock has no drip between the exit of the radio frequency pre-heat unit to within 0.5 inches of the entrance of the die.
(3) For open bath pultrusion machines without a radio frequency pre-heat unit, the enclosure must extend from the beginning of the resin bath to within 0.5 inches or less of the die entrance.
(4) For pultrusion lines with a pre-wet area prior to direct die injection, the enclosure must extend from the point at which the resin is applied to the reinforcement to within 12.5 inches or less of the entrance of the die(s). If the stock that is within 12.5 inches or less of the entrance to the die has any drip, it must be enclosed.
(5) The enclosure can only be constructed high enough to clear the highest part of the pultrusion line that must be inside the enclosure.
(6) The total open area of the enclosure must not exceed 2 times the cross sectional area of the puller window(s) and must comply with the requirements in paragraphs (b)(6)(i) through (iii) of this section.
(i) All areas which are open need to be included in the total open area calculation with the exception of access panels, doors, and/or hatches that are part of the enclosure.
(ii) The area which is displaced by entering reinforcement or exiting product is considered open.
(iii) Areas that are covered by brush covers are considered closed.
(7) Open areas for level control devices, monitoring devices, agitation shafts, and/or fill hoses must have no more than 1.0 inch clearance.
(8) The access panels, doors, and/or hatches that are part of the enclosure must close tightly to avoid vapor leakage. Damaged access panels, doors, and/or hatches that allow vapor leakage must be replaced.
(9) The enclosure may not be removed from the pultrusion line and access panels, doors, and/or hatches that are part of the enclosure must remain closed whenever resin is in the bath except for the time period discussed in paragraph (b)(10) of this section.
(10) The maximum length of time the enclosure may be removed from the pultrusion line or the access panels, doors, and/or hatches and may be open is 30 minutes per 8 hour shift (or 45 minutes per 12 hour shift).
(11) No fans, blowers, and/or air lines may be allowed within the enclosure. The enclosure must not be ventilated.
(c)
(1) All the resin that is applied to the reinforcement is delivered directly to the die.
(2) No exposed resin is present except at the face of the die.
(3) Resin drip is captured in closed piping and recycled directly to the resin injection chamber.
(d)
(a) You must be in compliance at all times with the work practice standards in Table 4 of this subpart, as well as emission limits in Table 3 or 5 of this subpart, as applicable, that you are meeting without the use of add-on controls.
(b) You must be in compliance with all emission limits in this subpart that you meet using add-on controls, except during periods of startup, shutdown, and malfunction.
(c) You must always operate and maintain your affected source, including air pollution control and monitoring equipment, according to the provisions in § 63.6(e)(1)(i).
(d) You must develop and implement a written startup, shutdown, and malfunction plan according to the provisions in § 63.6(e)(3) for any emission limits you meet using an add-on control.
You must conduct performance tests, performance evaluations, design evaluations, capture efficiency testing, and other initial compliance demonstrations by the compliance date specified in Table 2 of this subpart with two exceptions. Open molding and centrifugal casting operations that elect to meet a point value on a 12-month rolling average must initiate collection of the required data on the compliance date, and demonstrate compliance 1 year and 30 days after the compliance date. New and existing sources that are required to use add-on controls to initially meet compliance must demonstrate compliance 180 days after the compliance date.
You must also conduct a performance test every 5 years following the initial performance test for any standards you meet with an add-on control device.
(a) If you are using any add-on controls to meet an emission limit in this subpart, you must conduct each performance test, performance evaluation, and design evaluation in 40 CFR part 63, subpart SS, that applies to you.
(b) Each performance test must be conducted according to the requirements in § 63.7(e)(1) and under the specific conditions that 40 CFR part 63, subpart SS, specifies.
(c) Each performance evaluation must be conducted according to the requirements in § 63.8(e) and under the specific conditions that 40 CFR part 63, subpart SS, specifies.
(d) You may not conduct performance tests or performance evaluations during periods of startup, shutdown, or malfunction, as specified in § 63.7(e)(1).
(e) You must conduct three separate test runs for each performance test required in this section, as specified in § 63.7(e)(3). Each test run must last at least 1 hour.
(f) You must conduct a design evaluation of any permanent total enclosures as specified by EPA Method 204. If your enclosure does not meet the Method 204 design and operation requirements for a permanent total enclosure, you must test the enclosure to determine the capture efficiency by Methods 2B through E or an alternative method that meets the data quality objectives and lower confidence limit approaches contained in 40 CFR part 63, subpart KK. Test runs for Methods 2B through E or alternative test methods must be at least 3 hours.
You must monitor and operate all add-on control devices according to the procedures in 40 CFR part 63, subpart SS.
(a) You must demonstrate initial compliance with each emission standard in paragraphs (a) through (d) of § 63.5805 that applies to you, as shown in Tables 8 and 9 of this subpart.
(b) If using an add-on control device, you must establish each site-specific operating limit in 40 CFR part 63, subpart SS, that applies to you.
(a) For continuous lamination/casting affected sources complying with a percent reduction requirement, you must generate the data identified in Tables 10 and 11 of this subpart for each data requirement that applies to your facility.
(b) For continuous lamination/casting affected sources complying with a lbs/ton limit, you must generate the data identified in Tables 11 and 12 of this subpart for each data requirement that applies to your facility.
To calculate your annual uncontrolled and controlled emissions from your wet-out areas and from your ovens, you must develop uncontrolled and controlled wet-out area and uncontrolled and controlled oven emission estimation equations or factors to apply to each formula applied on each line, determine how much of each formula for each end product is applied each year on each line, and assign uncontrolled and controlled wet-out area and uncontrolled and controlled oven emission estimation equations or factors to each formula. You must determine the overall capture efficiency using the procedures in Table 6 of this subpart.
(a) To develop uncontrolled and controlled emission estimation equations and factors, you must, at minimum, do the following as specified in paragraphs (a)(1) through (6) of this section:
(1) Identify each end product and the thickness of each end product produced on the line. Separate end products into the following end product groupings, as applicable: corrosion-resistant gel coated end products, noncorrosion-resistant gel coated end products, corrosion-resistant nongel coated end products, and noncorrosion-resistant nongel coated end products. This step creates end product/thickness combinations.
(2) Identify each formula used on the line to produce each end product/thickness combination. Identify the amount of each such formula applied (need to specify a time frame). Rank each formula used to produce each end product/thickness combination according to usage within each end product/thickness combination.
(3) For each end product/thickness combination being produced, select the formula with the highest usage rate for testing.
(4) If not already selected, also select the worst-case formula (likely to be associated with the formula with the highest HAP content, type of HAP, application of gel coat, thin product, low line speed, higher resin table temperature) amongst all formulae. (You may use the results of the worst-case formula test for all formulae if desired to limit the amount of testing required.)
(5) For each formula selected for testing, conduct at least one test (consisting of three runs). During the test, track information on HAP content and type of HAP, end product thickness, line speed, and resin temperature on the wet-out area table.
(6) Using the test results, develop uncontrolled and controlled emission estimation equations (or factors) or series of equations (or factors) that best fit the results for estimating uncontrolled and controlled emissions, taking into account the HAP content and type of HAP, end product thickness, line speed, and resin temperature on the wet-out area table.
(b) In lieu of using the method specified in paragraph (a) of this section for developing uncontrolled and controlled emission estimation equations and factors, you may use any of the methods specified in paragraphs (b)(1) through (4) of this section, as applicable.
(1) For either uncontrolled or controlled emission estimates, you may use previously established, facility-specific emission equations or factors, provided they allow estimation of both wet-out area and oven emissions, where necessary, and have been approved by the regulatory agency. If a previously established equation or factor is specific to the wet-out area only or to the oven only, then you must develop the corresponding uncontrolled or controlled equation or factor for the other emission source.
(2) For uncontrolled (controlled) emission estimates, you may use controlled (uncontrolled) emission estimates and control device destruction efficiency to calculate your uncontrolled (controlled) emissions provided the control device destruction efficiency was calculated at the same time you collected the data to develop your facility's controlled (uncontrolled) emission estimation equations and factors.
(c) Assign to each formula an uncontrolled emission estimation equation or factor based on the end product/ thickness combination for which that formula is used.
(d)(1) To calculate your annual uncontrolled emissions from wet-out areas that do not have any capture and control from wet-out areas that are captured by an enclosure but are vented to the atmosphere and not to a control device, multiply each formula's annual usage by its appropriate emission estimation equation or factor and sum the individual results.
(2) To calculate your annual uncontrolled emissions that escape from the enclosure on the wet-out area, multiply each formula's annual usage by its appropriate uncontrolled emission estimation equation or factor, sum the individual results, and multiply the summation by 1 minus the percent capture (expressed as a fraction).
(3) To calculate your annual uncontrolled oven emissions, multiply each formula's annual usage by its appropriate uncontrolled emission estimation equation or factor and sum the individual results.
(4) To calculate your annual controlled emissions, multiply each formula's annual usage by its appropriate emission estimation equation or factor and sum the individual results to obtain total annual controlled emissions.
(e) Where a facility is calculating both uncontrolled and controlled emission
(a) The capture efficiency of a wet-out area enclosure is assumed to be 100 percent if it meets the design and operation requirements for a permanent total enclosure specified in EPA Method 204. If a permanent total enclosure does not exist, then a temporary total enclosure must be constructed and verified using Method 204, and capture efficiency testing must be determined using Methods 204B through E.
(b) The capture efficiency of an oven is to be considered 100 percent provided the oven is operated under negative pressure.
Use the following procedures to determine how much neat resin plus and neat gel coat plus is applied to the line each year.
(a) Track formula usage by end product/thickness combinations.
(b) Use in-house records to show usage. This may be either from automated systems or manual records.
(c) Record daily the usage of each formula/end product combination on each line. This is to be recorded at the end of each run (i.e., when a changeover in formula or product is made) and at the end of each shift.
(d) Sum the amounts from the daily records to calculate annual usage of each formula/end product combination by line.
(a)
(b)
(3)
(4)
(a)
(b)
(c)
(a) You must collect and keep a record of data as indicated in 40 CFR part 63, subpart SS.
(b) You must monitor and collect data as specified in paragraphs (b)(1) through (4) of this section.
(1) Except for monitoring malfunctions, associated repairs, and required quality assurance or control activities (including, as applicable, calibration checks and required zero and span adjustments), you must conduct all monitoring in continuous operation (or collect data at all required intervals) at all times that the affected source is operating.
(2) You may not use data recorded during monitoring malfunctions, associated repairs, and required quality assurance or control activities for purposes of this subpart, including data averages and calculations, or fulfilling a minimum data availability requirement, if applicable. You must use all the data collected during all other periods in assessing the operation of the control device and associated control system.
(3) At all times, you must maintain necessary parts for routine repairs of the monitoring equipment.
(4) A monitoring malfunction is any sudden, infrequent, not reasonably preventable failure of the monitoring equipment to provide valid data. Monitoring failures that are caused in part by poor maintenance or careless operation are not malfunctions.
(c) You must collect and keep records of resin and gel coat use, HAP content, and operation where the resin is used if you are meeting any emission limits based on a point value. Resin use records may be based on purchase records if you can reasonably estimate how the resin is applied. The HAP content records may be based on Material Safety Data Sheets or on resin specifications supplied by the resin supplier.
(d) If you initially demonstrate that all resins and gel coats meet the applicable point value emission limits, then resin and gel coat use records are not required. If after this initial demonstration, you change to a higher HAP resin or gel coat, or increase the resin or gel coat HAP content, or change to a higher emitting resin or gel coat application method, then you must either again demonstrate that all resins and gel coats still meet the applicable point value emission limits, or begin collecting resin use records and calculate compliance on a 12-month rolling average.
(e) You must record all times that wet area enclosures on any pultrusion machines are open, and resin is present in the resin bath.
(a) You must demonstrate continuous compliance with each standard in § 63.5805 that applies to you according to the methods specified in paragraphs (a)(1) through (3) of this section.
(1) Compliance with emission limits for sources using add-on control devices is demonstrated following the procedures in 40 CFR part 63, subpart SS. Sources using add-on controls may also use continuous emission monitors to demonstrate continuous compliance as an alternative to control parameter monitoring.
(2) Compliance with emission limits using the point value system is demonstrated by maintaining a point value less than or equal to the appropriate point value listed in Table 3 or 5 of this subpart, on a 12-month rolling average, or by including in each compliance report a certification that all resins and gel coats meet the appropriate point value limits, as discussed in § 63.5895(d).
(3) Compliance with the work practice standards in Table 4 of this subpart is demonstrated by performing the work practice required for your operation.
(b) You must report each deviation from each standard that applies to you in § 63.5805. The deviations must be reported according to the requirements in § 63.5910.
(c) With the exception provided in paragraph (d) of this section, during periods of startup, shutdown or malfunction, you must meet the emission limits and work practice standards that apply to you.
(d) During periods of startup, shutdown, or malfunction, you do not need to meet the standard(s) in § 63.5805 that require an add-on control device, but you must operate your affected source in accordance with the startup, shutdown, and malfunction plan and meet all standards that do not require the operation of the add-on control device.
(e) Consistent with §§ 63.6(e) and 63.7(e)(1), deviations that occur during a period of malfunction for those affected sources and standards specified in paragraph (d) of this section are not violations if you demonstrate to the Administrator's satisfaction that you were operating in accordance with the startup, shutdown, and malfunction plan. The Administrator will determine whether deviations that occur during a period of startup, shutdown, and malfunction are violations, according to the provisions in § 63.6(e).
(a) You must submit all of the notifications in Table 13 of this subpart that apply to you, by the dates in Table 13 of this subpart. The notifications are described more fully in subpart A, General Provisions, referenced in Table 13.
(b) If you change any information submitted in any notification, you must submit the changes in writing to the Administrator within 15 calendar days after the change.
(a) You must submit each report in Table 14 of this subpart that applies to you.
(b) Unless the Administrator has approved a different schedule for submission of reports under § 63.10(a),
(1) The first compliance report must cover the period beginning on the compliance date that is specified for your affected source in § 63.5800 and ending on June 30 or December 31, whichever date is the first date following the end of the first calendar half after the compliance date that is specified for your source in § 63.5800.
(2) The first compliance report must be postmarked or delivered no later than July 31 or January 31, whichever date follows the end of the first calendar half after the compliance date that is specified for your affected source in § 63.5800.
(3) Each subsequent compliance report must cover the semiannual reporting period from January 1 through June 30 or the semiannual reporting period from July 1 through December 31.
(4) Each subsequent compliance report must be postmarked or delivered no later than July 31 or January 31, whichever date is the first date following the end of the semiannual reporting period.
(5) For each affected source that is subject to permitting requirements pursuant to 40 CFR part 70 or 71, and if the permitting authority has established dates for submitting semiannual reports pursuant to § 70.6(3)(iii)(A) or § 71.6(3)(iii)(A), you may submit the first and subsequent compliance reports according to the dates the permitting authority has established instead of according to the dates in paragraphs (b)(1) through (4) of this section.
(c) The compliance report must contain the information in paragraphs (c)(1) through (6) of this section:
(1) Company name and address.
(2) Statement by a responsible official with that official's name, title, and signature, certifying the truth, accuracy, and completeness of the content of the report.
(3) Date of the report and beginning and ending dates of the reporting period.
(4) If you had a startup, shutdown or malfunction during the reporting period and you took actions consistent with your startup, shutdown, and malfunction plan, the compliance report must include the information in § 63.10(d)(5)(i).
(5) If there are no deviations from any emission limitations (emission limit and operating limit) that applies to you, and there are no deviations from the requirements for work practice standards in Table 4 of this subpart, a statement that there were no deviations from the emission limitations or work practice standards during the reporting period.
(6) If there were no periods during which the continuous monitoring system (CMS), including a continuous emission monitoring system (CEMS), and operating parameter monitoring systems was out of control as specified in § 63.8(c)(7), a statement that there were no periods during the which the CMS was out of control during the reporting period.
(d) For each deviation from an emission limitation (i.e., emission limit, operating limit) and for each deviation from the requirements for work practice standards that occurs at an affected source where you are not using a CMS to comply with the emission limitations or work practice standards in this subpart, the compliance report must contain the information in paragraphs (c)(1) through (4) of this section and in paragraphs (d)(1) and (2) of this section. This includes periods of startup, shutdown, and malfunction.
(1) The total operating time of each affected source during the reporting period.
(2) Information on the number, duration, and cause of deviations (including unknown cause, if applicable), as applicable, and the corrective action taken.
(e) For each deviation from an emission limitation (i.e., emission limit and operating limit) occurring at an affected source where you are using a CMS to comply with the emission limitation in this subpart, you must include the information in paragraphs (c)(1) through (4) of this section and in paragraphs (e)(1) through (12) of this section. This includes periods of startup, shutdown, and malfunction.
(1) The date and time that each malfunction started and stopped.
(2) The date and time that each CMS was inoperative, except for zero (low-level) and high-level checks.
(3) The date, time and duration that each CMS was out of control, including the information in § 63.8(c)(8).
(4) The date and time that each deviation started and stopped, and whether each deviation occurred during a period of startup, shutdown, or malfunction, or during another period.
(5) A summary of the total duration of the deviation during the reporting period and the total duration as a percent of the total source operating time during that reporting period.
(6) A breakdown of the total duration of the deviations during the reporting period into those that are due to startup, shutdown, control equipment problems, process problems, other known causes, and other unknown causes.
(7) A summary of the total duration of CMS downtime during the reporting period and the total duration of CMS downtime as a percent of the total source operating time during that reporting period.
(8) An identification of each hazardous air pollutant that was monitored at the affected source.
(9) A brief description of the process units.
(10) A brief description of the CMS.
(11) The date of the latest CMS certification or audit.
(12) A description of any changes in CMS, processes, or controls since the last reporting period.
(f) Each affected source that has obtained a title V operating permit pursuant to 40 CFR part 70 or 71 must report all deviations as defined in this subpart in the semiannual monitoring report required by § 70.6(a)(3)(iii)(A) or § 71.6(a)(3)(iii)(A). If an affected source submits a compliance report pursuant to Table 14 of this subpart along with, or as part of, the semiannual monitoring report required by § 70.6(a)(3)(iii)(A) or § 71.6(a)(3)(iii)(A), and the compliance report includes all required information concerning deviations from any emission limitation (including any operating limit) or work practice requirement in this subpart, submission of the compliance report shall be deemed to satisfy any obligation to report the same deviations in the semiannual monitoring report. However, submission of a compliance report shall not otherwise affect any obligation the affected source may have to report deviations from permit requirements to the permit authority.
(g) You should submit compliance reports and startup, shutdown, malfunction reports based on the requirements in Table 14 of this subpart. You do not need to consider the requirements in § 63.999 when submitting these reports.
(a) You must keep the records listed in paragraphs (a)(1) through (3) of this section.
(1) A copy of each notification and report that you submitted to comply with this subpart, including all documentation supporting any Initial Notification or Notification of Compliance Status that you submitted, according to the requirements in § 63.10(b)(2)(xiv).
(2) The records in § 63.6(e)(3)(iii) through (v) related to startup, shutdown, and malfunction.
(3) Records of performance tests, design, and performance evaluations as required in § 63.10(b)(2)(viii).
(b) If you use an add-on control device, you must keep all records required in 40 CFR part 63, subpart SS, to show continuous compliance with this subpart.
(c) You must keep all data, assumptions, and calculations used to determine point values for operations listed in Tables 3 and 5 of this subpart.
(d) You must keep a certified statement that you are in compliance with the work practice requirements in Table 4 of this subpart, as applicable.
(e) For a new or existing continuous lamination/ casting operation, you must keep the records listed in paragraphs (e)(1) through (4) of this section, when complying with the percent reduction and/or lbs/ton requirements specified in paragraphs (a) through (d) of § 63.5805.
(1) You must keep all data, assumptions, and calculations used to determine percent reduction and/or lbs/ton as applicable;
(2) You must keep a brief description of the rationale for the assignment of an equation or factor to each formula;
(3) When using facility-specific emission estimation equations or factors, you must keep all data, assumptions, and calculations used to derive the emission estimation equations and factors and identification and rationale for the worst-case formula; and
(4) For all emission estimation equations and emission factors, you must keep documentation that the appropriate regulatory agency has approved them.
(a) You must maintain all applicable records in such a manner that they can be readily accessed and are suitable for inspection according to § 63.10(b)(1).
(b) As specified in § 63.10(b)(1), you must keep each record for 5 years following the date of each occurrence, measurement, maintenance, corrective action, report, or record.
(c) You must retain your records of the most recent 2 years onsite, or your records must be accessible to an inspector while onsite. Your records of the remaining 3 years may be retained offsite.
Table 15 of this subpart shows which parts of the General Provisions in §§ 63.1 through 63.15 apply to you.
(a) This subpart can be administered by us, the EPA, or a delegated authority such as your State, local, or tribal agency. If the EPA Administrator has delegated authority to your State, local, or tribal agency, then that agency has the authority to administer and enforce this subpart. You should contact your EPA Regional Office to find out if this subpart is delegated to your State, local, or tribal agency.
(b) In delegating implementation and enforcement authority of this subpart to a State, local, or tribal agency under section 40 CFR part 63, subpart E, the authorities contained in paragraph (c) of this section are not delegated.
(c) The authorities that will not be delegated to State, local, or tribal agencies are listed in paragraphs (c)(1) through (4) of this section:
(1) Approval of alternatives to the emission standards in § 63.5805 under § 63.6(g).
(2) Approval of major alternatives to test methods under § 63.7(e)(2)(ii) and (f) and as defined in § 63.90.
(3) Approval of major alternatives to monitoring under § 63.8(f) and as defined in § 63.90.
(4) Approval of major alternatives to recordkeeping and reporting under § 63.10(f) and as defined in § 63.90.
Terms used in this subpart are defined in the Clean Air Act, in 40 CFR 63.2, the General Provisions, and in this section as follows:
(2) Complies with industry standards that require specific exposure testing to corrosive media, such as UL 1316, UL 1746, or ASTM F-1216.
As required in §§ 63.5797, 63.5798(a)(1) and (b), and 63.5810(a)(1), to calculate model point values for specific open molding and centrifugal casting process streams you must use the equations in the following table:
As required in §§ 63.5800 and 63.5840 you must demonstrate compliance with the standards by the dates in the following table:
As required in §§ 63.5805 (a) and (c), 63.5810(a) through (b), 63.5820(c), 63.5830, 63.5835, and 63.5900(a)(2), you must meet the appropriate emission limits in the following table:
As required in § 63.5805 (a) through (d) you must meet the appropriate work practice standards in the following table:
As specified in § 63.5805 (b) and (d), as an alternative to the 95 percent HAP emission reduction requirement, you may meet the appropriate emission limits in the following table:
As required in §§ 63.5810(a)(1), 63.5825(a), 63.5830(a), and 63.5870, you must conduct performance tests, performance evaluations, and design evaluation according to the requirements in the following table:
As required in § 63.5810(c), when selecting one resin point value for multiple operations you must use the values in the following table:
As required in § 63.5860(b), you must demonstrate initial compliance with emission limits as specified in the following table:
As required in § 63.5860(b), you must demonstrate initial compliance with work practice standards as specified in the following table:
As required in § 63.5865(a), in order to comply with a percent reduction limit for continuous lamination lines and continuous casting lines you must determine the data in the following table:
As required in § 63.5865, in order to comply with a percent reduction limit or a lbs/ton limit on an averaging basis for continuous lamination lines and continuous casting lines you must determine the data in the following table:
As required in § 63.5865(b), in order to comply with a lbs/ton emission limit for continuous lamination lines and continuous casting lines you must determine the data in the following table:
As required in § 63.5905, you must determine the applicable notifications and submit them by the dates shown in the following table:
As required in § 63.5910(a) through (b) and (f) through (g), you must submit reports on the schedule shown in the following table:
As specified in § 63.5925, the parts of the General Provisions which apply to you are shown in the following table:
Centers for Medicare & Medicaid Services (CMS), HHS.
Proposed rule.
This proposed rule would refine the resource-based practice expense relative value units and make several changes to Medicare Part B payment. The policy changes concern services and supplies incident to a physician's professional service; anesthesia base unit variations; recognition of CPT tracking codes; and nurse practitioners, physician assistants, and clinical nurse specialists performing screening sigmoidoscopies. We are proposing these refinements and changes to ensure that our payment systems are updated to reflect changes in medical practice and the relative value of services. We are soliciting comments on the proposed policy changes as well as comments on the payment policy for CPT modifier 62 that is used to report the work of co-surgeons.
The Medicare, Medicaid, and SCHIP Benefits Improvement and Protection Act of 2000 modernizes the mammography screening benefit and authorizes payment under the physician fee schedule effective January 1, 2002; provides for biennial screening pelvic examinations for certain beneficiaries effective July 1, 2001; provides for annual glaucoma screenings for high-risk beneficiaries effective January 1, 2002; expands coverage for screening colonoscopies to all beneficiaries effective July 1, 2001; establishes coverage for medical nutrition therapy services for certain beneficiaries effective January 1, 2002; expands payment for telehealth services effective October 1, 2001; requires certain Indian Health Service providers to be paid for some services under the physician fee schedule effective July 1, 2001; and revises the payment for certain physician pathology services effective January 1, 2001. This proposed rule would conform our regulations to reflect the statutory provisions.
We will consider comments if we receive them at the appropriate address, as provided below, no later than 5 p.m. on October 1, 2001.
Mail written comments (1 original and 3 copies) to the following address:
Centers for Medicare & Medicaid Services, Department of Health and Human Services, Attention: CMS-1169-P, P.O. Box 8013, Baltimore, MD 21244-8013.
To insure that mailed comments are received in time for us to consider them, please allow for possible delays in delivering them. If you prefer, you may deliver your written comments (1 original and 3 copies) to one of the following addresses: Room C5-14-03, 7500 Security Boulevard, Baltimore, MD 21244-8013.
Comments mailed to the above addresses may be delayed and received too late for us to consider them.
Because of staff and resource limitations, we cannot accept comments by facsimile (FAX) transmission. In commenting, please refer to file code CMS-1169-P.
For information on viewing public comments, please see the beginning of the Supplementary Information section.
Carolyn Mullen, (410) 786-4589 or Marc Hartstein, (410) 786-4539 (for issues related to resource-based practice expense relative value units).
Carlos Cano, (410) 786-0245 (for issues related to screenings for sigmoidoscopies).
Paul W. Kim, (410) 786-7410 (for issues related to incident to services).
Rick Ensor, (410) 786-5617 (for issues related to mammography screenings).
Bill Larson, (410) 786-4639 (for issues related to screening pelvic examinations, screenings for glaucoma, and coverage for screening colonoscopies).
Bob Ulikowski, (410) 786-5721 (for issues related to the payment for screening colonoscopies).
Mary Stojak, (410) 786-6939 (for issues related to medical nutrition therapy).
Joan Mitchell, (410) 786-4508 (for issues related to the payment for medical nutrition therapy).
Craig Dobyski, (410) 786-4584 (for issues related to telehealth).
Terri Harris, (410) 786-6830 (for issues related to Indian Health Service providers).
Jim Menas, (410) 786-4507 (for issues related to anesthesia and pathology services).
Diane Milstead, (410) 786-3355 (for all other issues).
This
Information on the physician fee schedule can be found on our homepage. You can access this data by using the following directions:
1. Go to the CMS homepage (http://www.cms.hhs.gov).
2. Click on “Medicare.”
3. Click on “Professional/Technical Information.”
4. Select Medicare Payment Systems.
5. Select Physician Fee Schedule.
To assist readers in referencing sections contained in this preamble, we are providing the following table of contents. Some of the issues discussed in this preamble affect the payment policies but do not require changes to the regulations in the Code of Federal Regulations. Information on the regulation's impact appears throughout the preamble and is not exclusively in section VI.
In addition, because of the many organizations and terms to which we refer by acronym in this proposed rule, we are listing these acronyms and their corresponding terms in alphabetical order below:
Since January 1, 1992, Medicare has paid for physicians' services under section 1848 of the Social Security Act (the Act), “Payment for Physicians” Services.” This section provides for three major elements: (1) A fee schedule for the payment of physicians' services; (2) a sustainable growth rate for the rates of increase in Medicare expenditures for physicians' services; and (3) limits on the amounts that nonparticipating physicians can charge beneficiaries. The Act requires that payments under the fee schedule be based on national uniform relative value units (RVUs) based on the resources used in furnishing a service. Section 1848(c) of the Act requires that national RVUs be established for physician work, practice expense, and malpractice expense. Section 1848(c)(2)(B)(ii)(II) of the Act provides that adjustments in RVUs may not cause total physician fee schedule payments to differ by more than $20 million from what they would have been had the adjustments not been made. If adjustments to RVUs cause expenditures to change by more than $20 million, we must make adjustments to preserve budget neutrality.
In the July 2000 proposed rule (65 FR 44177), we listed all of the final rules published through November 1999, relating to the updates to the RVUs and revisions to payment policies under the physician fee schedule.
In the November 2000 final rule with comment period (65 FR 65376), we revised the policy for resource-based practice expense relative value units (RVUs); the geographic practice cost indices; resource-based malpractice RVUs; critical care RVUs; care plan oversight, physician certification and recertification for home health services; observation care codes; ocular photodynamic therapy and other ophthalmologic treatments; electrical bioimpedance; antigen supply, and the implantation of ventricular assist devices. This rule also addressed the comments received on the May 3, 2000 interim final rule (65 FR 25664) on the supplemental survey criteria and made modifications to the criteria for data submitted in 2001. Based on public comments, we withdrew our proposals related to the global period for insertion, removal, and replacement of pacemakers and cardioverter defibrillators, and to the removal of RVUs for low intensity ultrasound. The November 2000 final rule also discussed or clarified the payment policy for incomplete medical direction, pulse oximetry services, outpatient therapy supervision, outpatient therapy caps, HCPCS “G” Codes, and the second 5-year refinement of work RVUs for services furnished beginning January 1, 2002. In addition, we finalized the calendar year (CY) 2000 interim physician work RVUs and issued interim RVUs for new and revised codes for CY 2001. We made these changes to ensure that our payment systems are updated to reflect changes in medical practice and the relative value of services. This final rule also announced the CY 2001 Medicare physician fee schedule conversion factor under the Medicare Supplementary Medical Insurance (Part B) program as required by section 1848(d) of the Act. The 2001 Medicare physician fee schedule conversion factor was $38.2581.
This proposed rule would affect the regulations set forth at Part 405, Federal health insurance for the aged and disabled, Part 410, Supplementary medical insurance (SMI) benefits; Part 411, Exclusions from Medicare and limitations on Medicare payment; Part 414, Payment for Part B medical and other health services; and Part 415, Services furnished by physicians in providers, supervising physicians in teaching settings, and residents in certain settings.
Section 121 of the Social Security Act Amendments of 1994 (Public Law 103-432), enacted on October 31, 1994, required us to develop a methodology for a resource-based system for determining practice expense RVUs for each physician's service beginning in
Section 4505(a) of the BBA amended section 1848(c)(2)(ii) of the Act and delayed the effective date of the resource-based practice expense RVU system until January 1, 1999. In addition, section 4505(b) of the BBA provided for a 4-year transition period from charge-based practice expense RVUs to resource-based RVUs. The practice expense RVUs for CY 1999 were the product of 75 percent of charge-based RVUs and 25 percent of the resource-based RVUs. For CY 2000, the RVUs were 50 percent charge-based RVUs and 50 percent resource-based RVUs. For CY 2001, the RVUs are 25 percent charge-based and 75 percent resource-based. After CY 2001, the RVUs will be totally resource-based.
Section 4505(e) of the BBA amended section 1848(c)(2) of the Act by providing that 1998 practice expense RVUs be adjusted for certain services in anticipation of implementation of resource-based practice expenses beginning in 1999. As a result, the statute required us to increase practice expense RVUs for office visits. For other services in which practice expense RVUs exceeded 110 percent of the work RVUs and were furnished less than 75 percent of the time in an office setting, the statute required us to reduce the 1998 practice expense RVUs to a number equal to 110 percent of the work RVUs. This reduction did not apply to services that had proposed resource-based practice expense RVUs that increased from their 1997 practice expense RVUs as reflected in the June 18, 1997 proposed rule (62 FR 33196). The services affected and the final RVUs for 1998 were published in the October 1997 final rule (62 FR 59103).
Further legislation affecting resource-based practice expense RVUs was included in the Balanced Budget Refinement Act of 1999 (BBRA) (Public Law 106-113). Section 212 of the BBRA amended section 1848(c)(2)(ii) of the Act by directing us to establish a process under which we accept and use, to the maximum extent practicable and consistent with sound data practices, data collected or developed by entities and organizations. These data would supplement the data we normally collect in determining the practice expense component of the physician fee schedule for payments in CY 2001 and CY 2002.
Effective with services furnished on or after January 1, 1999, we established a new methodology for computing resource-based practice expense RVUs that used the two significant sources of actual practice expense data we have available—the Clinical Practice Expert Panel (CPEP) data and the American Medical Association's (AMA) Socioeconomic Monitoring System (SMS) data. The methodology was based on an assumption that current aggregate specialty practice costs are a reasonable way to establish initial estimates of relative resource costs for physicians' services across specialties. The methodology allocated these aggregate specialty practice costs to specific procedures and, thus, can be seen as a “top-down” approach. Discussion of the various elements of the methodology and their application follow.
• Step (1) We used the AMA's SMS survey of actual cost data to determine practice expenses per hour by cost category. The practice expenses per hour for each physician respondent's practice was calculated as the practice expenses for the practice divided by the total number of hours spent in patient care activities. The practice expenses per hour for the specialty were an average of the practice expenses per hour for the respondent physicians in that specialty. For the CY 2000 physician fee schedule, we also used data from a survey submitted by the Society of Thoracic Surgeons (STS) in calculating thoracic and cardiac surgeons' practice expense per hour. (Please see the November 1999 final rule (64 FR 59391) for additional information concerning acceptance of these data.) For CY 2001 we used these STS data, as well as survey data submitted by the American Society of Vascular Surgery and the Society of Vascular Surgery. (Please see the November 2000 final rule (65 FR 65385) for additional information on acceptance of these data.)
• Step (2) We determined the total number of physician hours (by specialty) spent treating Medicare patients. This was calculated from physician time data for each procedure code and from Medicare claims data.
• Step (3) We calculated the practice expense pools by specialty and by cost category by multiplying the specialty practice expenses per hour for each category by the total physician hours.
For services with work RVUs equal to zero (including the technical component (TC) of services with a TC and professional component (PC)), we created a separate practice expense pool using the average clinical staff time from the CPEP data (since these codes by definition do not have physician time) and the “all physicians” practice expense per hour.
(i) Direct Costs. For direct costs (including clinical labor, medical supplies, and medical equipment), we used the CPEP data as the allocation basis. The CPEP data for clinical labor, medical supplies, and medical equipment were used to allocate the costs for each of the respective cost pools.
For the separate practice expense pool for services with work RVUs equal to zero, we used adjusted 1998 practice expense RVUs as an interim measure to allocate the direct cost pools. (Please see the November 1998 final rule (63 FR 58891) for further information related to this adjustment.) Also, for all radiology services that are assigned work RVUs, we used the adjusted 1998 practice expense RVUs for radiology services as an interim measure to allocate the direct practice expense cost pool for radiology. For all other specialties that perform radiology services, we used the CPEP data for radiology services in the allocation of that specialty's direct practice expense cost pools.
(ii) Indirect Costs. To allocate the cost pools for indirect costs, including administrative labor, office expenses, and all other expenses, we used the total direct costs, as described above, in combination with the physician fee schedule work RVUs. We converted the work RVUs to dollars using the Medicare CF (expressed in 1995 dollars
The SMS pool was divided by the CPEP pool for each specialty to produce a scaling factor that was applied to the CPEP direct cost inputs. This was intended to match costs counted as practice expenses in the SMS survey with items counted as practice expenses in the CPEP process. When the specialty-specific scaling factor exceeded the average scaling factor by more than 3 standard deviations, we used the average scaling factor. (Please see the November 1999 final rule (64 FR 59390) for further discussion of this issue.)
For procedures performed by more than one specialty, the final procedure code allocation was a weighted average of allocations for the specialties that perform the procedure, with the weights being the frequency with which each specialty performs the procedure on Medicare patients.
(ii) Practice Expenses per Hour Adjustments and Specialty Crosswalks. Since many specialties identified in our claims data did not correspond exactly to the specialties included in the practice expense tables from the SMS survey data, it was necessary to crosswalk these specialties to the most appropriate SMS specialty category. We also made the following adjustments to the practice expense per hour data. (For the rationale for these adjustments to the practice expense per hour, see the November 1998 final rule (63 FR 58841).)
• We set the medical materials and supplies practice expenses per hour for the specialty of “oncology” equal to the “all physician” medical materials and supplies practice expenses per hour.
• We based the administrative payroll, office, and other practice expenses per hour for the specialties of “physical therapy” and “occupational therapy” on data used to develop the salary equivalency guidelines for these specialties. We set the remaining practice expense per hour categories equal to the “all physician” practice expenses per hour from the SMS survey data. (Note that in the November 2000 final rule (65 FR 65403), we increased the space allotment for therapy services to 750 square feet.)
• Due to uncertainty concerning the appropriate crosswalk and time data for the nonphysician specialty “audiologist,” we derived the resource-based practice expense RVUs for codes performed by audiologists from the practice expenses per hour of the other specialties that perform these services.
• For the specialty of “emergency medicine,” we used the “all physician” practice expense per hour to create practice expense cost pools for the categories “clerical payroll” and “other expenses.”
• For the specialty of “podiatry,” we used the “all physician” practice expense per hour to create the practice expense pool.
• For the specialty of “pathology,” we removed the supervision and autopsy hours reimbursed through Part A of the Medicare program from the practice expense per hour calculation.
• For the specialty “maxillofacial prosthetics,” we used the “all physician” practice expense per hour to create practice expense cost pools and, as an interim measure, allocated these pools using the adjusted 1998 practice expense RVUs.
• We split the practice expenses per hour for the specialty “radiology” into “radiation oncology” and “radiology other than radiation oncology” and used this split practice expense per hour to create practice expense cost pools for these specialties.
(iii) Time Associated with the Work RVUs. The time data resulting from the refinement of the work RVUs have been, on average, 25 percent greater than the time data obtained by the Harvard study for the same services. We increased the Harvard study's time data to ensure consistency between these data sources.
For services with no assigned physician time, such as dialysis, physical therapy, psychology, and many radiology and other diagnostic services, we calculated estimated total physician time based on work RVUs, maximum clinical staff time for each service as shown in the CPEP data, or the judgment of our clinical staff.
We calculated the time for CPT codes (hereafter referred to as “codes”) 00100 through 01996 using the base and time units from the anesthesia fee schedule and the Medicare allowed claims data.
We outlined in the November 1998 final rule (63 FR 58832) the steps we were undertaking as part of the initial refinement process. These steps included the following:
• Establishment of a mechanism to receive independent advice for dealing with broad practice expense RVU technical and methodological issues.
• Evaluation of any additional recommendations from the General Accounting Office, the Medicare Payment Advisory Commission (MedPAC), and the Practicing Physicians Advisory Council (PPAC).
• Consultation with physician and other groups about these issues.
We also discussed a proposal submitted by the AMA's Specialty Society Relative Value Update Committee (RUC) for development of a new advisory committee, the Practice Expense Advisory Committee (PEAC), to review comments and recommendations on the code-specific CPEP data during the refinement period. In addition, we solicited comments and suggestions about our practice expense methodology from organizations that have a broad range of interests and expertise in practice expense and survey issues.
(i) Use of the Top-Down Approach. Most of the physician organizations commenting agreed that this methodology was preferred for computing resource-based practice expense RVUs and that it was in accordance with the requirements of the
(ii) Use of the SMS Survey. The supplemental non-SMS survey data submitted by several specialties in response to the 1998 proposed rule, with the exception of the survey data from the thoracic surgeons, were not compatible with the format or methodology of the SMS. We awarded a contract to the Lewin Group to recommend criteria for the acceptance of specialty-specific practice expense data so that we could supplement the SMS data as appropriate. These recommended criteria are contained in the final report, “An Evaluation of the Health Care Financing Administration's Resource-Based Practice Expense Methodology.” This report is available on our web page under the same title. (Access to our web site is discussed under the
The report also contains recommendations for revisions to the SMS or other surveys to efficiently meet the needs of our practice expense methodology. We augmented these recommendations and forwarded our suggestions for revisions to any future surveys to the AMA. For example, we developed supplementary survey questions that would allow us to distinguish both costs and direct patient care hours for all midlevel practitioners. We also suggested revisions that would capture the necessary information on separately billable supplies and services so that we could eliminate these costs from the specialty-specific practice expense per-hour calculations.
To obtain supplementary specialty-specific practice expense data that could be used in computing practice expense RVUs beginning January 1, 2001, we published an interim final rule on May 3, 2000 (65 FR 25664) that set forth the criteria applicable to supplemental survey data submitted to us by August 1, 2000.
We also provided a 60-day period for submission of public comments on our criteria for survey data submitted between August 2, 2000 and August 1, 2001 for use in computing the practice expense RVUs for the CY 2002 physician fee schedule.
In the November 1, 2000 final rule (65 FR 65385), we responded to comments received on the interim final rule and made modifications to the criteria for supplemental survey data that will be considered in computing practice expense RVUs for the CY 2002 physician fee schedule. These data can then be used to supplement the SMS survey data currently used to estimate each specialty's aggregate practice costs or to replace the crosswalks used for specialties not represented in the SMS.
In our November 1999 final rule, we accepted supplementary data submitted by the thoracic surgeons and, in our November 2000 rule, we accepted survey data from the vascular surgeons that replaced the previously crosswalked practice expense per hour data for that specialty. If we receive additional specialty-specific survey data before August 1, 2001 that meets the criteria outlined in the November 1, 2000 final rule, we will use this supplementary data in calculating the CY 2002 practice expense RVUs.
We accepted our contractor's recommendation to incorporate the latest SMS data into our practice-expense-per-hour calculations. For CY 2001, we incorporated the 1998 SMS data into a 4-year average and are proposing to incorporate the 1999 SMS data into a 5-year average to calculate the CY 2002 practice expense RVUs.
We also accepted the contractor's recommendation to standardize the survey practice expense data to a common year. We adjusted the data to reflect a 1995 cost year.
We received comments that urged us to use the median SMS specialty-specific data instead of the mean, as well as comments supporting our use of the mean values. We made a decision to continue to use the mean in calculating the specialty-specific practice expense per hour. We believe that, in a small sample, using the median could eliminate outlying data from the calculation that represent real costs and thus should be considered.
(iii) CPEP Data. The AMA has formed a multispecialty sub-committee of their Relative Value Update Committee (RUC), the Practice Expense Advisory Committee (PEAC), to review the CPEP clinical staff, equipment, and supply data for all physician services. This multispecialty committee, which includes representatives from all major specialty societies, would then make recommendations on suggested refinements to this data. We indicated in our November 1998 final rule (63 FR 58833) that we would work with the PEAC and RUC to refine the practice expense direct cost inputs. This refinement process was supported in comments we received from almost every major physician specialty society.
In our 1999 physician fee schedule final rule, we implemented most CPEP refinements recommended by the RUC. For the 2000 final rule, the RUC forwarded to us significant additional refinement recommendations that reflected multispecialty agreement on the typical resources for many important services, including visit codes, that account for approximately 24 percent of Medicare spending for physician services. Again we received and accepted almost all of these RUC recommendations. In addition, at its October 2000, February 2001, and April 2001 meetings, the PEAC focused on high-volume services and on standardizing inputs across wide ranges of services. We, therefore, anticipate that the pace of refinement of the CPEP inputs will continue to accelerate.
In addition to implementing most of the RUC-recommended refinements, we responded to comments on errors and anomalies in the CPEP data in both the November 1999 and November 2000 final rules. For example, we removed separately billable casting supplies and drugs from all services, we adjusted the prices of certain supplies that were clearly in error, we removed duplicated equipment from the direct inputs of the nuclear medicine codes, we added clearly essential equipment that was missing from the lithotripsy and photochemotherapy codes, we corrected anomalies in inputs within several families of codes, and we changed the crosswalks for the CPEP inputs of several codes not valued by the CPEP panels when a commenter suggested more appropriate crosswalks.
We simplified the refinement of equipment inputs by combining both the procedure-specific and overhead equipment into a single equipment category. We also deleted stand-by equipment and equipment used for multiple services at one time from the direct cost inputs because of the difficulty of allocating these costs at the code-specific level.
We are resolving issues related to averaging input costs for codes that were valued by more than one CPEP panel. While we have received comments agreeing and disagreeing with our use of mean costs, the issue is moot because we are substituting refined data for the data previously produced by multiple CPEPs.
(iv) Physician Time Data. In the November 1999 rule (64 FR 59404), we stated that, in general, requests for revisions for the procedure-specific physician times should be deferred to either the RUC process or the 5-year review process. However, we did adopt the newer data to correct the physician time for the pediatric surgery codes and made the requested revisions to correct anomalies in the times of certain psychotherapy codes.
In response to comments on the times associated with physical and occupational therapy services, we added preservice and postservice times to all of these codes.
(v) Crosswalk Issues. In response to concerns expressed by specialty societies representing emergency medicine that the SMS data did not capture the costs of uncompensated care, we crosswalked emergency medicine's administrative labor and other expenses cost pools to the practice expense per hour for “all physicians.”
We resolved issues related to the specialty crosswalk for nursing specialties by eliminating the separate practice expense pools for midlevel practitioners.
(vi) Calculation of Practice Expense Pools—Other Issues. We addressed concerns that potential errors in our specialty utilization data will have an effect on the calculation of practice expense RVUs. In the July 2000 proposed rule (65 FR 44178), we discussed our simulations that demonstrated that the small percentage of potential errors in our very large database have no adverse effect on specialty-specific practice expense RVUs.
We have created the zero-work pool for services with no physician work to ensure that these services are not inappropriately disadvantaged by our methodology. We have also agreed with the request of all the specialty societies that commented that their services should be moved out of the zero-work pool and into the specialty-specific pool. The specialties whose services remain in the zero-work pool have indicated that they wish their services to remain there. We plan to eliminate this separate pool for services with no physician work only when we have determined what revisions to our methodology are required so that we can value these services appropriately outside of the zero-work pool.
(vii) Calculation of Indirect Cost. We requested that our contractor evaluate various options for calculating indirect costs. The final report, referenced above, contains an analysis of the impacts of six alternative allocation methodologies. In confirming the suitability of our allocation methodology, the report concludes that “HCFA's approach is broadly consistent with most of the alternative methods. This consistency suggests that, from a broad perspective, no other allocation methodology offers a compelling reason to abandon the current HCFA approach.”
(viii) Site-of-Service. The practice expense RVUs would be expected to be higher in the non-facility setting, where the practitioner bears the costs of the necessary staff, supplies, and equipment, than in the facility setting. To prevent potential anomalies in our calculations due to the different mix of specialties performing a given service in different settings, we capped the facility practice expense RVUs at the non-facility level for each specific service.
In the November 1999 final rule (64 FR 59407), in response to a comment from the Renal Physicians Association, we agreed that the monthly capitated service codes should always be reported using the non-facility designation. The site of service designations are not meaningful for a monthly service that may be provided in different settings for the same patient during a given month.
Although we need to do additional work to complete the refinement of all practice expense RVUs, we believe that the above description of our actions to date shows that much has been accomplished. We also believe that it demonstrates that we have been responsive to comments from the medical community and have established a process that enables this community to participate fully in the refinement of both the specialty-specific practice expense per hour and the CPEP code-specific inputs.
We are currently using data from the 1995 through the 1998 SMS surveys (1994 through 1997 practice expense data) in order to calculate the specialty-specific practice expense per hour. The 1999 SMS survey data is now available. Because we want to incorporate the most recent survey data into our methodology during the transition period, we are proposing to add this 1999 data to the 4 years of data we are currently using.
We are proposing to use these 5 years of data in addition to any supplemental specialty-specific data that meet our criteria as the basis of the practice expense per hour calculations until the first 5-year review of practice expense RVUs in 2007. At that time, we anticipate that newer practice expense survey data might be available.
The proposed specialty-specific practice-expense per hour calculations are shown in Table 1. The specialty level impact of using the additional SMS data is shown in Table 5 of the regulatory impact statement. As indicated, Table 5 shows the impact of this change only relative to the current estimated fully-implemented practice expense RVUs.
To ensure the maximum opportunity for specialties to submit supplementary practice expense data, we are proposing to accept survey data that meets the criteria set forth in the November 2000 final rule for an additional 2 years. The deadlines for submission of such supplemental data to be considered in CY 2003 and CY 2004 are August 1, 2002 and August 1, 2003, respectively.
The cost of the original CPEP inputs for staff, supplies, and equipment were assigned by our contractor, Abt Associates, based primarily on 1994 and 1995 pricing data. In addition, for many items on the equipment and supply list, the associated costs were based on the recommendation of a CPEP panel member, rather than on actual catalog prices. Several equipment and supply items and clinical staff types also have been added subsequent to the CPEP panels. In general, the costs of these inputs have been provided by the relevant specialty society, with and without documentation of the costs.
We are proposing to revise the salary and cost estimates by using the most current pricing data available. We contracted with a consultant to help us in this endeavor and the contractor also solicited advice and information from the major medical specialty societies. We appreciate the time and effort given to this project by the staff of many of the specialty societies. We have at this time completed our proposals for the update of clinical staff salary data and discuss these proposals below. However, we have not yet completed the pricing update for all of the hundreds of supplies and pieces of equipment that are in our CPEP database. We have had difficulty in identifying some of these inputs because many of the original descriptions are too general to price (for example, “laser” or “antibody”) or because the item cannot be found in any supplier's catalog. In addition, several of the pieces of equipment are now obsolete and we need input regarding the appropriate equipment to price. Therefore, we need to work closely with the specialty societies in the coming months so that we can propose accurate prices for all the supply and equipment inputs in next year's proposed rule.
For the original CPEP wage data, Abt Associates used three primary external data sets: The Bureau of Labor Statistics' (BLS) Occupation Compensation Survey, 1993; The University of Texas Medical Branch (UTMB) Survey of Hospital and Medical School Salaries, 1994; and the Current Population Survey, 1993. Abt's report on the CPEP cost estimation stated that, “* * * the BLS data were considered to be the preferred data set. The BLS’ reputation for publishing valid estimates that are nationally representative led to the choice of the BLS data as the main source. If more than one data set provided an exact mapping for a receptionist, then the BLS wage was chosen over any other mapping.”
We agreed with this assessment and directed our current contractor to use the most current BLS survey (1999) as the main source of wage data. The two other data sets used by Abt were not useful in this pricing update. The UTMB survey has apparently not been repeated and the Current Population Survey was used mainly for administrative staff types that are no longer treated as a direct cost.
It should also be noted that the BLS discontinued the Occupational Compensation Survey used in 1995 and now conducts the National Compensation Survey that has a different breakdown of staff types than the earlier survey. This survey also does not cover all the staff types contained in the CPEP data. Therefore, it has been necessary for us to crosswalk or extrapolate the wages for several staff types using supplementary data sources for verification whenever possible.
We used three other data sources to price wages of staff types that were not referenced in the BLS data—the American Society of Clinical
We welcome comments and input on both our proposed wage rates and our proposed crosswalks. We are particularly seeking any additional sources of reliable national pricing for the wages of staff types not included in the BLS. Anecdotal information regarding individual pay scales will not be particularly helpful for setting national rates, though such information could help with verification of other data. For those staff types that are included in the BLS, we would require data that is equally representative and valid in order to consider revising our proposed salaries.
The table below lists the clinical staff types whose input has been priced, the source for the data, the staff type crosswalk used, the proposed annual salary in 2001 dollars (using the Medicare Economic Index to convert 1999 salaries to 2001 dollars), the proposed cost per minute (including benefits) and the current cost per minute (including benefits) for comparison purposes. The proposed cost per minute was derived by dividing the annual salary by 2080 to arrive at the hourly wage rate and then again by 60 to arrive at the per minute cost. To account for the employers' cost of providing fringe benefits, such as sick leave, we used the same benefits multiplier of 1.366 used by Abt. The last column in the table refers to the numbered notes following the table that contain proposals regarding the pricing of the staff types and additional information as needed.
(1) We are proposing to collapse the medical assistant, technical aide, medical technician, EKG technician, anesthesia technician, technician, and cast technician staff types into a new staff type called, “medical or technical assistant” that will be priced at the medical assistant proposed wage rate per minute. This will represent an increased per minute rate for all the bundled staff types.
(2) We are proposing to bundle the staff type “RN-cardiology” into the staff type “RN.” RN-cardiology is used as the staff type for the pre- and post-service time of only three percutaneous valvuloplasty services, codes 92986, 92987 and 92990. We were unable to find any national salary data for the oncology certified nurse (OCN). In the absence of other information, we are adjusting the proposed wage rate to be 18 percent higher than the RN; this is the same differential that currently exists between these two staff types.
(3) We are proposing to bundle the staff type “surgery assistant”, which is assigned to only 19 surgical services, into the staff type “certified surgical technologist (CST)”, which is assigned to 133 services. It also appears that Abt mapped the averaged costs from a first assistant and certified scrub technician to the surgery assistant staff type, which does not appear to be the most appropriate crosswalk for the office setting.
(4) We used the average hourly rate for histologic technologists from the 1998 American Society of Clinical Pathologists' survey to propose a wage for the histotechnician staff type. This survey's average hourly rate of $12.90 for laboratory technician generally corresponds to our proposed rate of $13.67 and its average hourly rate of $19.00 for cytotechnologists almost matches our proposed rate of $18.90. Therefore, we believe that the $15.60 hourly rate we are proposing for the histotechnician maintains the current relativity between these laboratory staff types.
(5) We were unable to find any national salary data for the electron microscopy technician and, in the absence of such data, are crosswalking the salary from the wage rate for the histotechnician. This does represent an increase in the per minute cost for this staff type. However, we would welcome reliable national survey data from the specialty that we could use in pricing this staff type.
(6) We were only able to find direct BLS salary data for the electroneurodiagnostic technologist staff type. This information was contained in the BLS Occupational Outlook Handbook rather than in the listing of Occupational Employment Statistics where we found all other BLS data. We are proposing to crosswalk the corresponding salary from the Handbook to the electrodiagnostic technologist staff type. Data for the EEG technician came from the
(7) We are proposing to bundle the vascular technician in with the cardiovascular technology staff type. Currently both are priced at the same rate.
(8) We are proposing to merge the x-ray technician and radiation technologist staff types, which are currently priced at the same rate, into a staff type called “Radiologic Technologist.”
(9) Because we were unable to find any national survey data regarding the salaries for CAT scan technician, MRI technician, or angiographic technician, we are proposing to crosswalk these staff types to the BLS radiologic technologist pay scale. If there is a generally applied differential for these specialized radiologic technologists, we would welcome any reliable national survey data that would allow us to separately price these staff types.
(10) We are proposing to merge the nuclear cardiology technician in with the nuclear medicine technician staff type. Currently, both are priced at the same rate.
(11) We are proposing to merge the cardiac sonographer and the ultrasound technician into the sonographer staff type. Currently, all three are priced at the same rate.
(12) We are proposing to use the average salary data for all certified health physicists from the 1999 survey done by the American Academy of Health Physics and the American Board of Health Physics.
(13) We were unable to find representative national salary data for either the certified ophthalmic technician (COT) or the certified ophthalmic medical technologist (COMT). Until we can obtain such data, we are proposing to crosswalk the COT and COMT to the lab technician and histotechnician, respectively, since we believe that the skill and responsibility of these staff types would generally correspond. Again, we would welcome reliable and representative national salary data for these staff types.
(14) Data for our proposed salary for the certified retinal angiographer came from the
(15) In the absence of any national salary data for the orthoptist, we crosswalked the salary from that of the COMT, the highest level of ophthalmic medical personnel.
We are also proposing to delete those clinical staff that can bill separately from the list of CPEP staff types. We believe that these staff types are used as physician extenders and thus their salaries should not be considered as
The CPEP clinical staff inputs also include blends of staff types that are used for those services where more than one type of clinical staff may be used in the performance of the service. We are proposing to establish the payment rates for these blends by calculating a simple average of the wage rates of the staff types included. The table below shows the blended staff types, the proposed cost per minute and the current cost per minute.
In its May 2000 submission to us, the RUC recommended the use of an ophthalmology visit supply package that would contain the routine supplies typically used in each 90-day global postsurgical visit for ophthalmology services. We accepted this recommendation. However, upon further review, we noted that two of the supplies—rev eyes and post myd spectacles—were not used in many of the postsurgical office visits. Therefore, after consulting with the ophthalmology specialty society, we are proposing to remove these two items from the ophthalmology visit package. Instead, we propose to include these items as appropriate on a code-by-code basis.
Section 430(b) of BIPA amends section 1861(t)(1) of the Act to include contrast agents in the definition of drugs and biologicals. Previously, contrast agents were defined as supplies and were included in the list of CPEP supplies for the appropriate services. Therefore, we are proposing to delete the costs of the following contrast agents from our CPEP data—hypaque, methylene blue, high density barium, polibar, telopaque tablets, barium paste contrast, effervescent sparkies (fizzies) and renographin-60 iodinated contrast.
The primary sources for the physician time data used in creating the specialty-specific practice expense pools are the surveys performed for the initial establishment of the work RVUs and the surveys submitted to the AMA RUC. The AMA informed us that some of the times used for the November 1998 final rule (63 FR 58823) differed from the official RUC database, and we agreed to use the RUC-verified physician time database when we received it from the AMA. Subsequently, the AMA notified us that there were gaps in its own database for certain global surgery codes and that a revised time database would be sent to us once all the times were verified. We have now received this revised database and are proposing to use it in the calculation of the specialty-specific practice expense pools. It should be noted that the RUC database reflects the proposed physician times for those codes that were surveyed as part of the 5-year review of physician work.
On January 1, 1998, we implemented regulations at § 410.37(d) (Conditions for coverage of screening flexible sigmoidoscopies) requiring that screening flexible sigmoidoscopies be performed by a doctor of medicine or osteopathy (as defined in section 1861(r)(1) of the Act). Based on our review of current medical literature, we believe that there are other practitioners whose services are covered under Medicare who have been trained and are qualified to perform these procedures safely and accurately, such as nurse practitioners, clinical nurse specialists, and physician assistants.
A growing body of literature has shown that certain non-physician health care professionals can carry out screening by flexible sigmoidoscopy as accurately and safely as physicians when properly trained. This procedure requires fewer supervised examinations to attain objective measures of technical competency than other endoscopic procedures, does not require sedation, and has a low rate of related complications. In the studies reviewed, physician and non-physician endoscopists achieved similar polyp detection rates and depth of insertion in screenings performed independently. No significant complications from sigmoidoscopy were reported in any of these studies. The level of satisfaction with the procedure was similar for all practitioners.
Therefore, we are proposing to revise § 410.37(d) to provide that, in addition to medical doctors and doctors of osteopathy, physician assistants, nurse practitioners, and clinical nurse specialists also be allowed to perform screening flexible sigmoidoscopies for beneficiaries if they meet the applicable Medicare qualification requirements in §§ 410.74, 410.75, and 410.76, and if they are authorized to perform these services under State law.
Section 1861(s)(2)(A) of the Act authorizes coverage of services and supplies (including drugs and biologicals that cannot, as determined in accordance with regulations, be self-administered) furnished as an incident to a physician's service, of kinds which are commonly furnished in physicians' offices and are commonly either furnished without charge or included in the physician's bills. This statutory “incident to” benefit differs from the “incident to” benefit in the hospital setting as set forth in section 1861(s)(2)(B) of the Act, which authorizes coverage of hospital services (including drugs and biologicals which cannot, as determined in accordance with regulations, be self-administered) incident to a physician's service furnished to outpatients and partial hospitalization services furnished to outpatients incident to a physician's service. This proposal only addresses the “incident to” benefit set forth in section 1861(s)(2)(A) of the Act.
In addition, the statute provides Medicare coverage of services incident to practitioners other than physicians. For example, section 1861(s)(2)(K) of the Act authorizes Medicare to pay for services incident to a service of a nurse practitioner or a physician assistant.
Section 2050 of the Medicare Carriers Manual (the manual) clarifies the coverage of services “incident to” physician services as described in section 1861(s)(2)(A) of the Act. Specifically, services incident to a physician service may be furnished by an employee of the physician. Alternatively, both the physician and the individual furnishing the “incident to” service must be employed by a common employer. Furthermore, the individual furnishing the “incident to” service may be any staff member working with the physician and not just one of the non-physician practitioners listed in section 1842(b)(18)(C) of the Act. We shall refer to these staff members as auxiliary personnel, a term which includes registered nurses and medical assistants.
Currently, our manual requires that the physician be either the employer of the auxiliary personnel or be an employee of the same entity that employs the auxiliary personnel. We note that, under our manual, auxiliary personnel may be either employees, leased employees, or independent contractors. An independent contractor relationship appears to be common current practice because it affords the auxiliary personnel the flexibility to work with various physicians or practitioners on a part-time basis. We do not believe that the nature of the employment relationship is critical for purposes of payment for services incident to the services of physicians and practitioners, so long as the auxiliary personnel reports to a physician or practitioner under the required level of supervision. We see no clinical reason to exclude independent contractor physicians and practitioners from the class of practitioners who can receive Medicare payment for services incident to their own services based solely on their status as independent contractors. Accordingly, we propose to allow auxiliary personnel to provide services incident to the services of physicians or practitioners who supervise them, regardless of the employment relationship. Thus, auxiliary personnel may be employees, leased employees, or independent contractors, and may provide services incident to the services of physicians and practitioners who employ or contract with them or who are employees or independent contractors of the same entity, provided that the other requirements for payment for “incident to” services are met. We note, however, that the employment relationship remains relevant under our rules prohibiting reassignment of Medicare benefits. (§§ 424.73 and 424.80) We also propose to codify the following definitions:
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We also propose to codify the provisions in section 2050 of the manual by revising § 410.26 to clarify the requirements for “incident to” services. Section 410.26 would be revised as follows:
• Services and supplies must be furnished in a noninstitutional setting to noninstitutional patients.
• Services and supplies must be an integral, although incidental, part of the service of a physician (or other practitioner) in the course of diagnosis or treatment of an injury or illness.
• Services and supplies must be commonly furnished without charge or included in the bill of a physician (or other practitioner).
• Services and supplies must be of a type that are commonly furnished in the office or clinic of a physician (or other practitioner).
• Services and supplies must be furnished under the direct supervision of the physician (or other practitioner).
• Services and supplies must be furnished by the physician, practitioner with an incident to benefit, or by auxiliary personnel.
• A physician (or other practitioner) may be an employee or an independent contractor.
• Drugs and biologicals are also subject to the limitations specified in § 410.29.
Section 4048(b) of the Omnibus Budget Reconciliation Act of 1987 amended section 1842(b) of the Act and required us to establish a uniform relative value guide for use in all carrier localities in determining payment for anesthesia services furnished by physicians under Medicare Part B. In accordance with the law, the uniform relative value guide was designed so that Medicare payment for anesthesia services would not exceed the amount that would have occurred under the then-existing system of payment.
We implemented the uniform relative value guide in March 1989 and selected the 1988 American Society of Anesthesiologists' (ASA) Relative Value Guide as the basis for the uniform relative value guide. (For a discussion of this issue, please see the August 7, 1990 final rule (55 FR 32078).)
To determine base unit values, we used the 1988 ASA base unit values for each anesthesia code, except for codes 00142 (lens surgery) and 00147 (iridectomy). The base unit values for each of these codes were set at 4 units instead of the ASA values of 6 and 5 units, respectively.
The ASA has requested that we ensure that the anesthesia base units under our uniform relative value guide are the same as those listed in the ASA's most current guide. Standardization of base units between Medicare and the ASA guide will simplify billing by anesthesiologists. The ASA's base unit values for the following 8 codes are different than CMS's values:
We are proposing to use the ASA base unit values from the 1999 guide beginning in CY 2002 for the above codes. However, the base unit values for codes 00142 and 00147 would remain at 4 units. The values for these codes were established by us under the “inherent reasonableness” process in 1987.
We would make an adjustment to the anesthesia conversion factor in 2001 so that payments would not exceed payments that would have been made using the current values. We currently estimate that this adjustment will be less than 0.5 percent.
In modernizing the CPT, the AMA has developed two new categories of codes. In addition to the traditional codes for physicians' and other practitioners' services, referred to as Category I CPT codes, which are coded by five digit numbers, the new codes describe Performance Measures and Emerging Technologies and are coded with four digits followed by a letter.
The Performance Measure codes, referred to as Category II CPT codes, are intended to facilitate data collection. These codes are designed to decrease the need for review of medical records to document when services were performed. They allow practitioners to indicate in their billing records that the visit addressed issues that need to be tracked for quality and outcome measurement. For example, there is likely to be a code to indicate that a diabetic patient received a retinal examination. The visit that contained that specific service might have been reported with an evaluation and management code or with a more general ophthalmological service code and paid for based on the code selected. Thus, the performance measurement code is used only to assist the practitioner to specify that the performance measurement service was furnished. The syntax of this code will be four digits followed by the letter “F.” We are proposing that no values are placed on the Performance Measure codes and no additional payment is made for the use of these codes. Practitioners will, however, be able to list them on their Medicare bills, to facilitate the tracking of these services.
The Emerging Technology codes, referred to as Category III CPT codes, are intended to track new and emerging technologies. These codes were developed to facilitate data collection on and assessment of new services and procedures. These data could be used to document the use of services and procedures in the Food and Drug Administration approval process or while the efficacy of a procedure is being demonstrated. The syntax of these codes is four digits followed by the letter “T.” In general, these codes represent services that are still experimental or have unverified effectiveness and would not be covered services. Although we were concerned that codes with a “T” designation might be needed for use by some Medicaid programs, we now believe that we would be able to process claims with the “T” in the fifth digit. However, we propose not to provide payment for all of the Emerging Technology Codes. Rather, we would provide payment on a case-by-case basis only in specific situations when we determine that the codes represent services that are not, in fact, experimental, but have been shown to be safe and effective. If the coverage policy is not consistent with the existing tracking codes, a Medicare-specific code may need to be developed to allow payment for the service. Thus, we propose that only specific emerging technology codes will be recognized for Medicare payment.
The CPT modifier code 62 is used to report the work of co-surgeons. Currently, if we pay for co-surgery, we pay a total of 125 percent of the fee schedule amount to the co-surgeons who each receive half of this total payment. This policy was established at the beginning of the fee schedule and
In addition, surgical practice has changed significantly over the past 10 years. For example, there is increasing use of noninvasive, minimally invasive, percutaneous, and endoscopic approaches to performing surgical procedures that were formerly performed as open procedures. Therefore, we are reviewing our payment policies for co-surgery to consider possible ways to ensure that they reflect current clinical practices and properly reflect the relative resources and work effort required to perform these services.
Among the issues we are considering are:
(1) Whether it would be possible to establish criteria for distinguishing the roles of a co-surgeon (when both surgeons are paid at 125 percent of the surgery amount) and assistant at surgery (when the total payment is 116 percent of the surgery amount);
(2) Whether any such criteria should vary by type of procedure (that is, open surgical, minimally invasive (including interventional procedures), and endoscopic procedures);
(3) Which procedures require a co-surgeon and under what circumstances should documentation be required for payment; and
(4) How to value the work performed by a co-surgeon.
While we are not making a specific proposal at this time, we will consider any information we receive to assist us in deciding whether to make a future proposal affecting payments for co-surgery.
The Medicare, Medicaid, and SCHIP Benefits Improvement and Protection Act of 2000 (BIPA) (Public Law 106-554), enacted on December 21, 2000, provides for revisions to policies applicable to the physician fee schedule. These revisions are presented below.
Medicare has paid for screening mammography since January 1, 1991. Section 1834(c) of the Act governing these screenings did not include screening mammography under the physician fee schedule and required payment using a different methodology. As stated in § 405.534, Medicare payment for screening mammography currently equals the lesser of the following: the actual charge for the service; the applicable amount under the physician fee schedule in an area for a bilateral diagnostic mammogram; or $55, a figure specified in section 1834(c)(3) of the Act, updated since 1991 by the Medicare Economic Index (MEI). In 2001, the statutory payment limit for screening mammography is $69.23. In most cases, payment for screening mammography is made at the national limit with no differences among geographical areas.
Section 104 of the Medicare, Medicaid, and SCHIP Benefits Improvement and Protection Act of 2000 (BIPA) amends section 1848(j)(3) of the Act to include screening mammography as a physician service for which payment is made under the physician fee schedule beginning January 1, 2002. We are proposing to amend §§ 405.534 and 405.535 to reflect the inclusion of screening mammography as a physician service which will be payable under the physician fee schedule. In addition, we are amending § 414.2 to include screening mammography under the definition for physicians' services. In accordance with part 414, payments for screening mammography will be resource-based and will have geographic adjustments that reflect cost differences among areas as do all other services under the physician fee schedule, including diagnostic mammography. The following is a discussion of our proposed RVUs for the professional and technical components (PC and TC) of a screening mammography, code 76092, under the physician fee schedule.
We are proposing to establish physician work RVUs=0.70. This value is equal to the proposed work RVUs from the 5-year review of physician work for code 76090, unilateral diagnostic mammogram. Due to the comparable number of views taken in both a unilateral diagnostic mammography and a screening mammography, we believe the physician work associated with the performance of screening mammography is similar to the physician work associated with unilateral diagnostic mammography.
We note that in the June 8, 2001 proposed notice on the 5-year review of work RVUs (66 FR 31028), we proposed to increase the work RVUs for unilateral diagnostic mammography from 0.58 to 0.70 RVUs, an increase of 21 percent. Additionally, we are proposing to increase the work RVUs for bilateral diagnostic mammography from 0.69 to 0.87 RVUs, an increase of 26 percent. Both of these increases would be effective for services performed on or after January 1, 2002. Our proposal to establish physician work RVUs for screening mammography equal to the physician work RVUs for unilateral diagnostic mammography, since both involve a four view film study, incorporates the increases we have proposed in the June 8, 2001 proposed notice.
We also believe that the practice expense and malpractice expense for the professional component of screening mammography is similar to the professional component of unilateral diagnostic mammography. As a result, we are proposing 0.25 practice expense RVUs and 0.03 malpractice RVUs for the PC of screening mammography. These proposed RVUs reflect changes to the practice expense RVUs for code 76090.
We propose valuing the technical component of screening mammography using a methodology that updates the original statutory limit for the technical component of screening mammography of $37.40, by the cumulative increase in physician fee schedule rates between 1992 and 2001. While screening mammography payments increased through application of the MEI between 1992 and 2001, resulting in a cumulative increase of 25.9 percent, physician fee schedule payments increased by 35.6 percent during this period. As a result, increasing payment for screening mammography by the statutory limit led to lower payment than if payment for the procedure had increased at the same rate as physician fee schedule services.
We propose updating the technical component of the initial screening mammography statutory limit of $37.40 by the same update factor that would have applied if screening mammography had received the same increases as physician fee schedule services. Currently, payment for the technical component of a screening mammography is equal to 68 percent of the statutory payment limit. To update the current value, we took 68 percent of the original $55 payment limit and increased it by 35.6 percent ($55 × 0.68 × 1.356 = $50.70). We divided this figure by the 2001 physician fee schedule CF of $38.2581 to determine total RVUs of 1.33. Since the TC is comprised only of practice and malpractice RVUs, we then used the
Overall, the proposed total RVUs associated with the combined PC and TC of code 76092 are 2.31 (0.70 work RVUs, 1.52 practice expense RVUs, and 0.09 malpractice expense RVUs). These proposed RVUs would result in a payment for CY 2002 of approximately $88.50, before application of any geographic adjustments.
The BIPA requires us to determine whether the assignment of new HCPCS codes is appropriate for both screening and diagnostic mammography using new technologies. If new codes are appropriate, the provision requires us to provide for their use beginning January 1, 2002. The provision defines new technology mammography to be an advance in technology with respect to the test or equipment that results in: (a) A significant increase or decrease in the resources used in the test or in the manufacture of the equipment; (b) a significant improvement in the performance of the test or equipment; or (c) a significant advance in medical technology that is expected to significantly improve the treatment of Medicare beneficiaries.
Before January 1, 2002, the BIPA provides for temporary payment amounts during the period April 1, 2001 to December 31, 2001 for two types of new technology mammography used in both diagnostic and screening procedures. The BIPA specifies that payment for technologies that directly take digital images would equal 150 percent of the amount that would otherwise be paid for bilateral diagnostic mammography. The BIPA also specifies that for technologies that convert standard film to a digital form which is then analyzed, payment would be equal to the statutory screening mammography limit for CY 2001, plus an additional payment of $15.00. Moreover, the BIPA specifies that the same payment amount be used for a screening or diagnostic procedure for each of the new technologies. We have implemented the temporary payment provisions via a Program Memorandum sent to Medicare carriers on February 1, 2000.
We believe that new HCPCS codes are appropriate for new technology mammography beginning with January 1, 2002 and propose codes to be used with the associated RVUs described below. We propose to establish three separate codes for directly taking a digital image (one for screening and one each for unilateral and bilateral diagnostic). Our approach would establish a single add-on code for computer-aided diagnosis with conversion of standard film images to digital images. At the present time, the FDA has approved computer-aided diagnosis only for use in conjunction with standard film screening mammography. Thus, at the present time, our proposal would only allow Gxxx4 to be billed as an add-on to 76090 if medically necessary. In the section that follows, we discuss the proposed coding and payment methodologies for new technology mammography.
We believe that the physician work and malpractice expense associated with both the PC and TC of HCPCS code Gxxx1 are analogous to the professional and technical components of CPT code 76092. (
For the PC of HCPCS code Gxxx1, we propose 0.70 work RVUs, 0.28 practice expense RVUs, and 0.03 malpractice expense RVUs. For the TC of HCPCS code Gxxx1, for which there is no physician work associated, we propose 2.50 practice expense RVUs and 0.06 malpractice RVUs. Please see Table 4 below for a summary of all component RVUs associated with this and other mammography services.
We believe that the physician work and malpractice expense associated with both the PC and TC of HCPCS code Gxxx2 are analogous to the PC and TC of code 76090. (
For the professional component of HCPCS code Gxxx2, we propose 0.70 work RVUs, 0.28 practice expense RVUs, and 0.03 malpractice expense RVUs. For the TC of HCPCS code Gxxx2, for which there is no physician work associated, we propose 1.99 practice expense RVUs and 0.05 malpractice expense RVUs. Please see Table 4 below for a summary of all component RVUs associated with this and other mammography services.
We believe that the physician work and malpractice expenses associated with both the PC and TC of HCPCS code Gxxx3 are analogous to the PC and TC of code 76091. (
For the PC of HCPCS code Gxxx3, we propose 0.87 work RVUs, 0.34 practice expense RVUs, and 0.03 malpractice expense RVUs. For the TC of HCPCS code Gxxx3, with which there is no physician work associated, we propose 2.47 practice expense RVUs and 0.06 malpractice expense RVUs. Please see Table 4 below for a summary of all component relative values associated with this and other mammography services.
We propose establishing HCPCS code Gxxx4 as an add-on code that can be billed only in conjunction with the primary service, code 76092. At this time, we understand that the only FDA-approved use of the computer-aided diagnosis mammography software is with screening film images. If there are other FDA-approved uses of computer-aided diagnosis, we allow for use of Gxxx4 as an add-on to other mammography services. We believe that the physician work associated with CPT code 76375,
For the PC of code Gxxx4, we propose 0.06 work RVUs, 0.02 practice expense RVUs, and 0.01 malpractice expense RVUs. For the TC of HCPCS code Gxxx4, with which there is no physician work associated, we propose 0.41 practice expense RVUs and 0.01 malpractice expense RVUs. Table 4 below summarizes all component RVUs associated with this and other mammography services.
Before the enactment of the BIPA, section 1861(nn)(2) of the Act authorized Medicare coverage for a screening pelvic examination (including a clinical breast examination) furnished to a woman for the purpose of early detection of cervical or vaginal cancer once every 3 years, or once every year for a woman who is at high risk for one of these conditions, or who is of childbearing age and meets certain other requirements.
Section 101 of the BIPA amends section 1861(nn)(2) of the Act (effective July 1, 2001) to provide that a woman who does not qualify for annual coverage of a screening pelvic examination under one of the statutory exceptions, qualifies for coverage of a screening pelvic examination (including a clinical breast examination) once every 2 years rather than once every 3 years.
We are conforming § 410.56 (Screening Pelvic Examinations) of the regulations to the new statutory provision that has been implemented through sections 4603, 3628.1 and 4731 of the Medicare Carrier Manual, the Medicare Intermediary Manual, and the Medicare Hospital Manual, respectively.
Section 102 of BIPA provides for Medicare coverage under Part B for screening for glaucoma for individuals with diabetes, a family history of glaucoma, or others determined to be at “high risk” for glaucoma effective for services furnished on or after January 1,
Currently, Medicare coverage policy allows for payment for examinations to diagnose glaucoma and related medically necessary services that are furnished to beneficiaries. Under this policy, diagnostic glaucoma tests are covered if they are medically necessary to evaluate a specific complaint or symptom that might indicate glaucoma or to monitor an existing medical condition of an individual who has had a history of elevated intraocular pressure or other signs of possible glaucoma. This coverage is based on sections 1861(s)(1) and (s)(3) of the Act. Section 1861(s)(1) of the Act provides for general Medicare coverage of physicians' services, including a physician's interpretation of the results of tests performed. Section 1861(s)(3) of the Act provides for general Medicare coverage of diagnostic x-ray, clinical laboratory, and other diagnostic tests. Before the enactment of the BIPA, screening for glaucoma was excluded from coverage based on § 411.15 (Particular services excluded from coverage), paragraphs (a) and (k).
To conform our regulations to the statutory requirements of the BIPA, we are specifying an exception to the list of examples of routine physical checkups excluded from coverage in §§ 411.15(a)(1) and 411.15(k)(9) for glaucoma screening examinations that meet the frequency limitation and the conditions for coverage that we are specifying under new § 410.23 (Screening for Glaucoma: Conditions for and Limitations on Coverage). Coverage of glaucoma screening is provided under Medicare Part B only. As provided in the statute, this new coverage allows payment for one glaucoma screening examination every year. We are proposing to add new § 410.23 (Screening for Glaucoma: Conditions for and Limitations on Coverage), to provide for coverage of the various types of glaucoma screening examinations specified in the statute. We are proposing several definitions of terms that would be included to implement the statutory provisions and to help the reader in understanding the provisions of the regulation. These include definitions of the following terms: (1) Screening for glaucoma, (2) eligible beneficiaries, and (3) direct supervision.
Section 102(b) of the BIPA defines the term “screening for glaucoma” to mean a dilated eye examination with an intraocular pressure measurement and a direct ophthalmoscopy or a slit-lamp biomicroscopic examination for the early detection of glaucoma. This section also provides that the screening examinations that are to be covered under Medicare are to be furnished by or under the direct supervision of an optometrist or ophthalmologist who is legally authorized to furnish these services under State law (or the State regulatory mechanism provided by State law) of the State in which the services are furnished. These are services that would otherwise be covered if furnished by a physician or as incident to a physician's professional service.
Section 102(a) of BIPA also provides that coverage of screening for glaucoma services will be available only for individuals determined to be at high risk for glaucoma, individuals with a family history of glaucoma and individuals with diabetes. Based on our review of the medical literature, and consultation with staff of the National Eye Institute and representatives of the American Academy of Ophthalmology and the American Optometric Association, we are proposing to interpret the statutory language, “individuals determined to be at high risk for glaucoma” to include Medicare beneficiaries who are African-Americans age 50 and over. While the National Eye Institute and others have provided us with information indicating that age and other factors may place a Medicare beneficiary at increased risk for glaucoma, we believe that the medical evidence available at this time is only sufficient to support inclusion of African-Americans age 50 and over in the statutory “high risk” category, in addition to individuals with diabetes and those with a family history of glaucoma who are covered separately under the new screening benefit. Studies have shown that the prevalence of glaucoma increases with age and is four to five times more likely to occur in African-Americans than in Caucasians. (Tielsch et al. JAMA 1991; Quigley. NEJM 1997) For African-Americans, the evidence indicates that the onset of the disease comes at an earlier age, and that the damage is more severe at the time of diagnosis. In view of the possibility that it may be appropriate to include other individuals in the statutory definition of those at “high risk” for glaucoma, however, we are requesting public comments on this issue. Specifically, we ask that anyone providing us with specific recommendations on this issue should provide documentation in support of them from the medical literature. In addition, we are proposing to use the term “eligible beneficiaries” to indicate who may qualify for the new screening glaucoma benefit, and we are proposing to define that term to include: (1) Individuals with diabetes mellitus, (2) individuals with a family history of glaucoma, and (3) African-Americans age 50 and over.
Section 102(b) of the BIPA also provides that the glaucoma screening examination is to be furnished by or under the direct supervision of an ophthalmologist or optometrist who is legally authorized to furnish such services under State law or regulation in which the services are furnished. We are proposing to define the term “direct supervision” as that term is defined in § 410.32(b)(3)(ii) for purposes of the oversight of covered diagnostic laboratory services as they are performed in the office setting. Specifically, we are proposing that the term “direct supervision” be defined to mean that the ophthalmologist or optometrist must be present in the office suite and immediately available to furnish assistance and direction throughout the performance of the procedure. The proposed definition states that the term “direct supervision” does not mean the physician must be present in the room when the procedure is performed.
We believe that services provided as part of glaucoma screening will often overlap other services a physician provides during a patient encounter as part of basic ophthalmological services and will result in no additional work or practice expense. Therefore, we propose bundling payment for glaucoma screening when it is provided on the same day as an evaluation and management (E/M) service, or when it is provided as part of any ophthalmology service. When glaucoma screening is the only service provided, or when it is provided as part of an otherwise noncovered service (for example, CPT 99397, preventive services visit), we propose to establish the following HCPCS codes and payments:
For physician work and for malpractice, we propose crosswalking this new HCPCS code to a level II E/M code, CPT 99212, which we believe represents a comparable level of work. The proposed work and malpractice RVUs are 0.45 and 0.02, respectively.
For physician work and for malpractice, we propose crosswalking this new HCPCS code to the lowest level E/M code, CPT 99211, which we believe represents a comparable level of work. The proposed work and malpractice RVUs are 0.17 and 0.01, respectively.
For non-facility settings, we propose the following practice expense inputs for both of the above HCPCS Codes:
Before the enactment of the BIPA, sections 1861(pp)(1)(C) and 1834(d)(3)(E) of the Act authorized Medicare coverage of screening colonoscopies once every 2 years for individuals at high risk for colorectal cancer. Individuals not at high risk for colorectal cancer did not qualify for coverage of screening colonoscopies under the colorectal cancer screening benefit, but they did qualify for coverage of other colorectal cancer screening examinations specified in the statute. These other examinations that were covered for individuals not at high risk for colorectal cancer included screening fecal-occult blood tests, screening flexible sigmoidoscopies, and screening barium enema examinations at certain frequency intervals specified in the statute and the regulations at § 410.37 (Colorectal cancer screening tests).
Section 103 of the BIPA amended sections 1861(pp)(1)(C), 1834(d)(2)(E)(ii), and 1834(d)(3)(F) of the Act to add coverage of screening colonoscopies once every 10 years for individuals not at high risk for colorectal cancer. However, in the case of an individual who is not at high risk for colorectal cancer, but who has had a screening flexible sigmoidoscopy within the last 4 years, the statute provides that payment may be made for a screening colonoscopy only after at least 47 months have passed following the month in which the last screening flexible sigmoidoscopy was performed. In addition, the statute provides that in the case of an individual who is not at high risk for colorectal cancer but who does have a screening colonoscopy performed on or after July 1, 2001, payment may be made for a screening flexible sigmoidoscopy only after at least 119 months have passed following the month in which the last screening colonoscopy was performed.
In view of the statutory changes, we are conforming §§ 410.37(e) and 410.37(g) (related to limitations on coverage of screening colonoscopies and screening flexible sigmoidoscopies) to make them consistent with the new provisions of the statute that have been implemented through manual provisions of the Medicare Carriers Manual, the Medicare Intermediary Manual Part III, and the Medicare Hospital Manual in transmittal numbers 6097, 1824, and 7069, respectively, in February 2001.
Payment for screening colonoscopy will be made under HCPCS code G0121: colorectal screening; colonoscopy for an individual not meeting criteria for high risk. As with current code G0105, screening colonoscopy for an individual at high risk, payment will be made at the level for a diagnostic colonoscopy, CPT code 45378, because the work is the same whether a procedure is screening or diagnostic. As the statute requires for both individuals who are or are not at high risk, if, during the course of the screening colonoscopy, a lesion or growth is detected that results in a biopsy or removal of the growth, the appropriate diagnostic procedure classified as colonoscopy with biopsy or removal should be billed and paid rather than HCPCS code G0105 or G0121.
Section 105 of the BIPA amended section 1861(s)(2) of the Act to authorize Medicare Part B coverage under Part B of medical nutrition therapy (MNT) for beneficiaries who have diabetes or renal disease, effective for services furnished on or after January 1, 2002. The legislation also:
• Authorizes dietitians and nutritionists who meet certain qualifications to be reimbursed directly by Medicare.
• Excludes from coverage beneficiaries who are receiving maintenance dialysis for which payment is made under section 1881 of the Act.
• Requires coordination of medical nutrition therapy benefits with the existing benefit for diabetes outpatient self-management training services.
• Defines a registered dietitian or other nutrition professional, and grandfathers dietitians or nutrition professionals who were licensed or certified in their States as of December 21, 2000, but would not otherwise meet the new requirements.
• Specifies that Medicare payment for MNT services must equal 80 percent of the lesser of the actual charge for the services or 85 percent of the amount determined under the physician fee schedule for the same services if furnished by a physician.
• Requires that we submit a report to the Congress by July 1, 2003, that contains recommendations with respect to expansion of the MNT benefit for other medical conditions.
This new benefit, while related, differs from the diabetes outpatient self-management training (DSMT) benefit, which was established by the BBA in section 1861(s)(2)(S) of the Act and described at section 1861(qq). The DSMT benefit is a comprehensive diabetes training program, of which nutrition training is only one component. Most of the available research (Diabetes Control and Complication Trial Research Group, 1993; UK Prospective Diabetes Study Group, 1995; and UK Prospective Diabetes Study Group, 1998) supports the use of a multi-disciplinary approach to diabetes, which includes nutrition training. As a result, nutrition training is considered to be an essential element of the DSMT benefit. Section 1861(qq) of the Act mandates the use of quality standards for DSMT and allows certified individuals or entities designated by the Secretary that meet such standards to receive Medicare payment for the service, provided that the physician managing the patient certified that DSMT is needed.
The approach in the BIPA with regard to MNT is different. The statute mandates specific qualifications regarding who may provide MNT services, but does not require that we establish quality standards. We are also instructed by the Congress to establish criteria for recognition of individuals in States that do not have licensure or certification requirements for registered dietitians or nutrition professionals.
We set specific duration and frequency limits for DSMT, consistent with the statutory authority granted by the BBA. In accordance with our regulations in § 410.141(c), all beneficiaries receiving the DSMT benefit may have up to 10 hours of initial training within a continuous 12-month period. For most beneficiaries, 9 of these 10 hours of training must be in a group setting. One hour of training may be on an individual basis for purposes of conducting an individual assessment and providing specialized training. Once a beneficiary has completed the 10 hours of initial
Consistent with section 105(a)(3) of the BIPA, we considered the protocols of the American Dietetic Association and the National Kidney Foundation regarding nutrition training for both diabetes and renal disease. Because the protocols were inconclusive with respect to the duration and frequency issues, we are proposing to determine the duration and frequency of the benefit through the National Coverage Determination (NCD) process rather than through the rulemaking process. We will solicit the opinions of all interested parties as a part of the NCD process.
We propose to set forth the provisions regarding medical nutrition therapy at Part 410, subpart G and at § 414.64. The MNT provisions of the proposed rule are as follows:
We propose to define “episode of care” as a time period that may not exceed 12 months, starting with the assessment (based on a referral from a physician), and including all covered interventions. The number of episodes of care covered during the lifetime of an individual beneficiary is unlimited. We chose a 12-month period to allow for the coordination of the MNT and DSMT benefits, as authorized by section 105(a)(3) of the BIPA.
Finally, in accordance with the statute, we define MNT services as nutritional diagnostic, therapy, and counseling services provided by a registered dietitian or nutrition professional for the purpose of managing disease. This definition tracks the language of the statute.
At proposed § 410.132(a), we set forth conditions for coverage of MNT services. Specifically, we provide that Medicare Part B pays for MNT services furnished by a registered dietitian or nutrition professional as defined in § 410.134 when the beneficiary is referred for the service by the beneficiary's treating physician. We limit the definition of physician to “treating physician” to ensure that the physician establishing the need for MNT is actually treating the beneficiary for the chronic disease and the therapy is coordinated with the care being provided by the treating physician. Referrals by a non-treating physician might also be interpreted as an indication that a fraudulent situation exists.
We are proposing that the services covered will consist of nutritional assessment, interventions, reassessment, and follow-up interventions. We chose not to define the specific components of the benefit in more detail because we anticipate that registered dietitians and nutritionists will use nationally recognized protocols, such as those developed by the American Dietetic Association (ADA) as they normally would in their business practice. We also chose not to specify the number of hours of MNT that will be covered. Rather, we will develop these frequency limits using the NCD process. After we complete a literature review, we will solicit input from interested parties as part of the NCD process.
At § 410.132(b), we set forth proposed coverage limitations for MNT services. In accordance with section 1861(s)(2)(V)(ii) of the Act, we would provide that MNT services are not covered for beneficiaries on dialysis for end-stage renal disease. We do not exclude all beneficiaries who are diagnosed with end-stage renal disease because a few individuals with end-stage renal disease do not receive maintenance dialysis and the statute specifically excludes beneficiaries receiving maintenance dialysis under section 1881 of the Act. The other provisions of this section would coordinate the referrals for MNT for diabetes and renal disease, and coordinate MNT services with DSMT services as follows:
• If a beneficiary has both diabetes and a renal disease as defined in this subpart, the beneficiary may receive both MNT and DSMT, but coverage in any 12-month period would be limited to the number of hours the beneficiary would receive under either the MNT benefit or the DSMT benefit for that period, whichever is greater.
• MNT would only be covered if the beneficiary had not started initial training under the diabetes self-management training benefit (as described in § 410.141) within the past 12 months, unless: (1) the need for a reassessment had been documented by the referring physician; or (2) the beneficiary had been diagnosed with both diabetes and renal disease.
• If a beneficiary diagnosed with diabetes was referred for both follow-up DSMT services and MNT, the beneficiary would only receive the total amount of hours covered under either follow-up DSMT services or MNT, whichever was greater.
If DSMT and MNT benefits overlapped, we would not allow the number of hours covered under the MNT benefit to exceed the hours Medicare would cover if the beneficiary was only receiving DSMT, except if a beneficiary receiving initial DSMT subsequently was diagnosed with renal disease or if there was a change in diagnosis or medical condition that occurred during an episode of care. We would allow additional hours of coverage for patients with renal disease and diabetes because MNT for renal disease is more complex than MNT for diabetes alone.
Eligibility for MNT services would be dependent upon diagnoses and referrals made by the treating physician. At proposed § 410.132(c), we provide that referral may only be made by the treating physician when the beneficiary has been diagnosed with diabetes or renal disease, with documentation maintained by the referring physician in the beneficiary's medical record. Referrals must be made for each episode of care. We note that the statute
At proposed § 410.132(d), we set forth requirements regarding reassessment and follow-up interventions. Specifically, we provide that reassessments and follow-up interventions would only be covered when the referring physician determines that there was a change of diagnosis or medical condition within an episode of care that made a change in diet necessary.
• Holds a bachelor's or higher degree granted by a regionally accredited ollege or university in the United States (or an equivalent foreign degree) with completion of the academic requirements of a program in nutrition or dietetics, as accredited by an appropriate national accreditation organization we have recognized for this purpose.
• Has completed at least 900 hours of supervised dietetics practice under the supervision of a registered dietitian or nutrition professional.
• Is licensed or certified as a dietitian or nutrition professional by the State in which the services are performed, or, if a State does not provide for licensure or certification, meets other criteria established by the Secretary.
We propose to exercise our statutory discretion, with respect to such alternative criteria, by providing that in States that do not provide licensure or certification requirements, we would use the designation of “registered dietitian” as certified by the Commission on Dietetic Registration, the credentialing agency for the American Dietetic Association; or require compliance with the statutory educational and experience requirements alone. The Commission on Dietetic Registration is currently considered to be the recognized standard in certification programs for registered dietitians. If an individual can supply documentation to us that he/she is a “registered dietitian,” we would not require that individual to also supply documentation that he/she meets the minimum statutory educational and experience requirements, because these latter requirements are also requirements an individual must currently meet to become a “registered dietitian.” Likewise, if an individual supplies documentation to us that he/she meets the minimum statutory educational and experience requirements, that individual would not need to supply documentation to us that he/she is a “registered dietitian.”
The statute also requires that an individual who, as of December 21, 2000 (BIPA's date of enactment), is licensed or certified under the law of the State in which the services are performed as a dietitian or nutrition professional, qualifies as a “registered dietitian or nutrition professional” even if he or she does not meet the other education and experience requirements. There is no provision in the law to allow grandfathering of dietitian or nutrition professionals in States with no licensure or certification requirements, or of individuals who did not choose to be licensed or credentialed as of the date of enactment of section 1861(vv)(3) of the Act. Therefore, we only provide for “grandfathering” of individuals who do meet the specific criteria of section 1861(vv)(3) of the Act.
As stated above, these services would be paid under the physician fee schedule. Malpractice RVUs for medical nutrition therapy services have been extrapolated based on analogous service procedures. The statute specifically provides that medical nutrition therapy services may only be provided by registered dietitians or nutrition professionals. We do not believe that physicians will be able to satisfy the qualification requirements and therefore will not be able to provide this service themselves. Therefore, we are not establishing physician work RVUs for this service. We interpret section 105(c)(2) of BIPA to mean that if a physician were to furnish this service, that the service was performed “incident to” the physicians treatment plan and provided by a registered dietitian or nutrition professional. Since we are not proposing work RVUs for medical nutrition therapy, we propose to determine practice expense RVUs using the practice expense methodology for the “zero work pool.” (For more information about the practice expense methodology for services that have no physician work, see the November 2, 1998 final rule (63 FR 58814)). The proposed RVUs for individuals and individuals in a group are found in Table 5 as follows:
Much like diabetes education, the number of MNT beneficiaries attending a group session would vary. As defined in the CPT's Physical Medicine Rehabilitation codes, a group is considered to be two or more individuals.
We would refine the medical nutritional therapy services payment amounts in the future by including the services into the refinement process
Medicare co-payments and deductibles would apply for medical nutritional therapy services. We are proposing to pay for this service under the physician fee schedule using the following codes:
Since payment for MNT will be included in our payment for facility services, separate payment will not be made for hospital inpatients or skilled nursing facility patients. Section 105(c) of BIPA amends section 1833(a)(1) to add subparagraph (T), requiring Medicare payment to equal 80 percent of the of the lesser of the actual charge for the service or 85 percent of the amount determined under the physician fee schedule. Thus, we will make payment in the hospital outpatient department, Federally Qualified Health Centers and Rural Health Clinics at the lesser of 80 percent of the actual charge or 85 percent of the physician fee schedule amount. The RVUs shown above do not reflect this 85 percent adjustment. To determine payment, the RVUs shown above will need to be multiplied by the physician fee schedule conversion factor and 0.85. We expect to provide the Medicare carriers with a payment file that includes this 85 percent adjustment. That is, we expect to determine the payment amount using the RVUs shown and apply the 85 percent adjustment to the product of the geographically adjusted RVUs and conversion factor. The Medicare carriers will not need to make any additional adjustment to the payments we provide.
The BBA provided for coverage of and payment for consultation services delivered via a telecommunications system to Medicare beneficiaries residing in rural health professional shortage areas (HPSA) as defined by section 332(a)(1)(A) of the Public Health Services Act. Additionally, a Medicare practitioner was required to be with the patient at the time of a teleconsultation.
The BBA specified that payment for a teleconsultation had to be shared between the consulting physician or practitioner and the referring physician or practitioner and could not exceed the fee schedule payment which would have been made to the consultant for the service provided. The BBA prohibited payment for any line charges or facility fees associated with the teleconsultation and clarified that the beneficiary may not be billed for these charges or fees.
These provisions became effective January 1, 1999. The November 2, 1998 final rule on “Revisions to Payment Policies Under the Physicians Fee Schedule for Calendar Year 1999” (63 FR 58879) implemented these provisions.
Beginning October 1, 2001, the BIPA amends section 1834 of the Act to provide for a new subsection (m) “Payment for Telehealth Services.” This amendment provides for an expansion of Medicare payment for telehealth services. A summary of the expansion appears below.
The BIPA specifies that we pay for telehealth services that are furnished via a telecommunications system by a physician (as defined in section 1861(r) of the Act) or a practitioner (described in section 1842(b)(18)(C) of the Act). Telehealth services may be provided only to an eligible telehealth individual enrolled under Medicare, notwithstanding the fact that the individual physician or practitioner providing the telehealth service is not at the same location as the beneficiary.
The BIPA defines Medicare telehealth services as professional consultations, office or other outpatient visits, and office psychiatry services identified as of July 1, 2000, by CPT codes 99241 through 99275; 99201 through 99215, 90804 through 90809 and 90862 (and as we may subsequently modify) and any additional service we specify.
The statute requires us to establish a process that provides, on an annual basis, for the addition or deletion of services (and HCPCS codes) as appropriate, to the services specified above, for authorized payment under Medicare.
Section 1834(m)(4)(B) of the Act, as added by the BIPA, specifies that an eligible telehealth individual means an individual enrolled under Part B who receives a telehealth service furnished at an originating site. Originating sites are defined only as specified medical facilities located in specific geographic areas. Section 1834(m)(4)(C) of the Act, as added by the BIPA, limits originating sites to the following types of facilities:
• The office of a physician or practitioner.
• A critical access hospital (as defined in section 1861(mm)(1) of the Act).
• A rural health clinic (as defined in section 1861(aa)(s) of the Act).
• A Federally qualified health center (as defined in section 1861(aa)(4) of the Act).
• A hospital (as defined in section 1861(e) of the Act).
The BIPA specifies that the originating site must be located in one of the following geographic areas:
• In an area that is designated as a rural health professional shortage area under section 332(a)(1)(A) of the Public Health Service Act.
• In a county that is not included in a Metropolitan Statistical Area.
• From an entity that participates in a Federal telemedicine demonstration project that has been approved by (or receives funding from) the Secretary of Health and Human Services as of December 31, 2000.
The BIPA relaxes some of the conditions for payment imposed by the BBA. Section 1834(m)(2)(C) of the Act, as added by the BIPA, specifies that a telepresenter is not required and specifically states that nothing in section 1834(m)(2)(C) of the Act shall be construed as requiring an eligible telehealth beneficiary to be presented by a physician or practitioner at the originating site for the furnishing of a service via a telecommunications system, unless it is medically necessary (as determined by the physician or practitioner at the distant site).
Additionally, section 1834(m)(1) of the Act, as added by the BIPA, specifies that, for purposes of defining a telecommunications system, in the case of any Federal telemedicine demonstration program conducted in Alaska or Hawaii, the term “telecommunications system” includes store and forward technologies that
Section 1834(m)(2) of the Act, as added by the BIPA, states that we pay a physician or practitioner located at a distant site that furnishes a telehealth service to an eligible telehealth beneficiary an amount equal to the amount that the physician or practitioner would have been paid under Medicare had the service been furnished without the use of a telecommunications system.
This section also provides for a facility fee payment to the originating site. It specifies that for the period beginning October 1, 2001 through December 31, 2002, the originating site facility fee is equal to $20. For each subsequent year, the facility fee for the preceding year is increased by the percentage increase in the MEI as defined in section 1842(i)(3) of the Act.
The BIPA amended section 1833(a)(1) of the Act by adding subparagraph (U), specifying that with respect to the originating site facility fees, the amount paid is 80 percent of the lesser of the actual charge or the amounts specified in new section 1834(m)(2) of the Act.
Section 1834(m)(3) of the Act requires that the provisions of sections 1848(g) and 1842(b)(18)(A) and (B) of the Act apply to physicians and practitioners. The provisions of section 1842(b)(18) of the Act apply to originating sites receiving a facility payment as the provisions apply to practitioners under section 1834(m) of the Act.
Section 1848(g) of the Act provides a limitation of charges to beneficiaries and provides sanctions if a physician, supplier, or other person knowingly and willfully bills or collects for services in violation of the limitation. It also provides for sanctions if a physician, supplier, or other person fails—(1) to timely correct excess charges by reducing the actual charge billed for the service to an amount that does not exceed the limiting charge for the service, or (2) to timely refund excess collections. In addition, it requires that physicians and suppliers submit claims for services they furnished to a beneficiary to a carrier on behalf of the beneficiary using a standard Medicare claim form. The statute imposes a penalty for failure to submit the claim. In addition, section 1848(g) of the Act prohibits imposing any charge relating to completing and submitting the claim. Section 1842(b)(18) of the Act provides that services furnished by a physician assistant, nurse practitioner, clinical nurse specialist, certified registered nurse anesthetist, anesthesiologist's assistant, certified nurse-midwife, clinical social worker, or clinical psychologist for which payment may be made on a reasonable charge or fee schedule basis may be made only on an assignment-related basis. It also limits the beneficiary's liability to any applicable deductible and coinsurance amounts. It further provides for sanctions against a practitioner who knowingly and willfully bills (or collects an amount) in violation of the limitation.
(i) Scope of telehealth benefit. Section 1834(m)(4)(B) of the Act, as added by the BIPA, defines an eligible telehealth individual as a Medicare beneficiary who receives a telehealth service furnished at an originating site. As discussed earlier, originating sites are limited to certain facilities within specifically identified geographic areas.
We would revise § 410.78 to specify that Medicare beneficiaries are eligible for telehealth services only if they receive services from an originating site located in either a rural HPSA as defined by section 332(a)(1)(A) of the Public Health Services Act or in a county outside of a MSA as defined by section 1886(d)(2)(D) of the Act. Additionally, we would provide for an exception if an entity participates in a Federal telemedicine demonstration project that has been approved by, or receives funding from, us as of December 31, 2000. That entity would not be required to be in a rural HPSA or non-MSA as described above.
We would also specify that, providing the geographic criteria are met, the following sites qualify as originating sites under this provision:
• The office of a physician or practitioner.
• A hospital as defined in section 1861(e) of the Act.
• A critical access hospital as defined in section 1861(mm)(1).
• A rural health clinic as defined in section 1861(aa)(2) of the Act.
• A Federally qualified health center as defined in section 1861(aa)(4) of the Act.
• Consultations (codes 99241 through 99275).
• Office and other outpatient visits (codes 99201 through 99215).
• Individual Psychotherapy (codes 90804 through 90809).
• Pharmacologic management (code 90862).
The BIPA provision is effective for services beginning on October 1, 2001. Payment for the statutorily specified codes, as listed above, will be implemented beginning with that date. We propose to make any additions or deletions to the services defined as telehealth effective on a January 1st basis. We plan to use the annual physician fee schedule proposed rule published in the summer and the final rule (published by November 1) each year as the vehicle to make these changes. Since the statutory provision will be implemented on October 1, 2001, and there is limited published data on telehealth in clinical settings, we will not make any recommendations on additional services until we have had time to ensure we have a process for redefining covered services in place.
We are soliciting suggestions and comments from the public regarding the guidelines that we should use to make additions or deletions of services. We also solicit suggestions and comments about specific services that may be appropriate to be covered under the Medicare telehealth benefit. Once we complete our review of these suggestions and comments, we will propose a more detailed approach as to how we would make modifications to the existing telehealth benefit.
(ii) Conditions of Payment:
Store and forward technology substitutes for an interactive, patient-present encounter in these limited circumstances. The patient is not present or available to interact with the distant site physician or practitioner in real-time.
We believe that when store and forward technologies are used to substitute for an interactive patient encounter, the technology must permit the distant site practitioner adequate medical information for recommending or confirming a diagnosis or treatment plan. A patient's medical information may typically include various combinations of the following items—video clips, still images, x-rays, magnetic resonance images, electrocardiogram and electroencephalogram tracings, tissue samples, laboratory results, and audio clips of heart or lungs.
We propose to specify at § 410.78 that, except for the statutory provision noted above, an interactive telecommunications system must be used and that the medical examination of the patient is at the control of the physician or practitioner at the distant site. We would define interactive telecommunications system as multimedia communications equipment that includes, at a minimum, audio and video equipment permitting two-way, real-time interactive communication between the patient and physician or practitioner at the distant site. We would also specify that telephones, facsimile machines, and electronic mail systems do not meet the definition of an interactive telecommunications system.
Additionally, we would provide an exception to the interactive requirements where the patient must be present for a Federal telemedicine demonstration program conducted in Alaska or Hawaii. We would specify that for Federal telemedicine demonstration programs conducted in Alaska or Hawaii, Medicare payment is permitted for telehealth when asynchronous store and forward technologies, in single or multimedia formats, are used as a substitute for an interactive telecommunications system. Additionally, we would specify that the physician or practitioner at the distant site must be affiliated with the demonstration program.
This exception would be permitted for Federal telemedicine demonstration projects conducted in Alaska or Hawaii only. Interactive telecommunications system with the real-time presence of the patient is required as a condition of payment in all other circumstances.
We would define asynchronous, store and forward technologies, as the transmission of the patient's medical information from an originating site to the physician or practitioner at the distant site. The physician or practitioner at the distant site can review the medical case without the patient being present. Asynchronous telecommunications system in single media format does not include telephone calls, images transmitted via facsimile machines, and text messages without visualization of the patient (electronic mail). Photographs must be specific to the patient's medical condition and adequate for rendering or confirming a diagnosis or treatment plan. Dermatological photographs, for example, a photograph of a skin lesion may be considered to meet the requirement of a single media format under this provision.
Additionally, we would define the originating site as the location of an eligible Medicare beneficiary at the time the service being furnished via a telecommunications system occurs. For asynchronous, store and forward telecommunications technologies, an originating site is a Federal telemedicine demonstration program conducted in Alaska or Hawaii.
As discussed earlier in this document, covered telehealth services include office visits (codes 99201 through 99215), consultation (codes 99241 through 99275), individual psychotherapy (codes 90804 through 90809), and pharmacologic management (code 90862). If a physician, clinical nurse specialist, nurse practitioner, physician assistant, nurse midwife, clinical psychologist, or clinical social worker is licensed under State law to provide a service listed above, then these practitioners may bill for and receive payment for this service when delivered via a telecommunications system.
Clinical psychologists and clinical social workers cannot bill or receive payment for psychotherapy involving evaluation and management services under Medicare when the service is delivered face-to-face (that is, without the use of a telecommunications system). Therefore, clinical psychologists and clinical social workers cannot receive payment for these services under the telehealth benefit.
We would specify that the physician or practitioner at the distant site may be any of the following (provided that the physician or practitioner is licensed to bill for the service being furnished via a telecommunications system):
• A physician as described in § 410.20.
• A physician assistant as defined in § 410.74.
• A nurse practitioner as defined in § 410.75.
• A clinical nurse specialist as described in § 410.76.
• A nurse midwife as defined in § 410.77.
• A clinical psychologist as described in § 410.71.
• A clinical social worker as defined in § 410.73.
However, we would further specify that a clinical psychologist and clinical social worker may bill for individual psychotherapy furnished via a telecommunications system, but may not seek payment for medical evaluation and management services.
(iii) Payment provisions.
However, the telepresenter could bill and receive payment for services that are not telehealth services that a telepresenter would otherwise be allowed to provide under the Medicare statute, including services furnished on the same day as the telehealth service.
A new HCPCS code for the facility fee for the originating site will be used to identify this fee. Since this is a new occasion of payment under Medicare, a separate and distinct code for the facility fee is necessary for contractors to make the appropriate payment.
The Indian health care system provides primary health care to many American Indian and Alaska Native Medicare beneficiaries. This system consists of programs operated by a
Effective July 1, 2001, section 432 of the BIPA extends the exception in section 1880 of the Act to permit Medicare payments to hospitals and outpatient clinics (provider-based or free-standing), operated by the IHS or by a tribe or tribal organization, for services furnished by physicians and specified non-physician practitioners in or at the direction of an IHS hospital or outpatient clinic. Payments for these services are made to the IHS or tribal hospital or outpatient clinic, not to the physician or other practitioner. These payments are subject to the same situations, terms, and conditions as would apply if the services were furnished in or at the direction of a hospital or outpatient clinic that is not operated by the IHS or by a tribe or tribal organization. The payments include incentive payments for physicians furnishing covered physicians' services in rural or urban HPSAs if the usual HPSA criteria are met. (For further information see section 1833 of the Act and § 414.42 of our regulations.) Payments will not be made under these provisions to the extent that Medicare is otherwise paying for the same services under other provisions (for example, as part of a bundled payment, or if a tribal hospital outpatient clinic continues to bill as a Federally qualified health center (FQHC)).
We are adding a new § 410.46 to our regulations to reflect this new statutory provision. Due to the statutory effective date of July 1, 2001, we will implement this BIPA provision through program memorandum instructions.
The November 2, 1999 final rule (64 FR 59380) provided that, for services furnished on or after January, 1, 2001, carriers would no longer pay claims to independent laboratories under the physician fee schedule for the technical component (TC) of physician pathology services for hospital inpatients. Before this rule, independent laboratories could bill the carrier under the physician fee schedule for the TC of a physician pathology service furnished to a hospital inpatient. Under the rule, independent labs would still have been able to bill and receive payment for TC physician pathology services furnished to patients who are not hospital inpatients. (The TC of physicians' pathology services includes the TC of cytopathology and surgical pathology physicians' services as described in the Medicare Carrier Manual, section 15020 B and C.) This change was to take effect for services furnished on or after January 1, 2001. The delay between publication and effective date was intended to allow independent laboratories and hospitals sufficient time to negotiate new arrangements, if necessary.
Section 542 of the BIPA requires the Medicare carrier to continue to pay for the TC of physician pathology services when an independent laboratory furnishes these services to an inpatient or outpatient of a covered hospital. The BIPA provisions apply to TC services furnished during the 2-year period beginning January 1, 2001 and continuing through December 31, 2002. We informed the carriers and the intermediaries of this provision through program memorandum AB-01-47 which was issued in March 2001. This program memorandum requested the carriers to notify independent laboratories of this provision in their next regularly scheduled bulletin and to place this bulletin on their Internet web site.
In the absence of further legislation, the policy of the November 1999 final rule will take effect for the TC of physician pathology services furnished to hospital patients after December 31, 2002.
For this provision, “covered hospital” means a hospital that had an arrangement with an independent laboratory that was in effect as of July 22, 1999, under which a laboratory furnished the TC of physician pathology services to fee-for-service Medicare beneficiaries who were hospital inpatients or outpatients and submitted claims for payment for the TC to a carrier. The TC could have been submitted separately or combined with the professional component and reported as a combined service.
The term “fee-for-service Medicare beneficiary” means an individual who—(1) Is entitled to benefits under Part A or enrolled under Part B of Title XVIII or both, and; (2) Is not enrolled in any of the following:
• A Medicare+Choice plan under Part C of that title.
• A plan offered by an eligible organization under section 1876 of the Act.
• A program of all-inclusive care for the elderly (PACE) under section 1894 of the Act.
• A social health maintenance organization (SHMO) demonstration project established under section 4018(b) of the Omnibus Budget Reconciliation Act of 1987.
Under the Paperwork Reduction Act (PRA) of 1995, we are required to provide 60-day notice in the
• The need for the information collection and its usefulness in carrying out the proper functions of our agency.
• The accuracy of our estimate of the information collection burden.
• The quality, utility, and clarity of the information to be collected.
• Recommendations to minimize the information collection burden on the affected public, including automated collection techniques.
We are soliciting public comment on each of these issues for the following sections of this document that contain information collection requirements:
Paragraph (c) of this section requires a referring physician or practitioner to
We believe the burden associated with these provisions is exempt in accordance with 5 CFR 1320.3(b)(2) because the time, effort, and financial resources necessary to comply with these requirements would be incurred by certified providers in the normal course of business activities.
If you comment on these information collection and recordkeeping requirements, please mail copies directly to the following:
Because of the large number of items of correspondence we normally receive on
We have examined the impact of this rule as required by Executive Order 12866 (September 1993, Regulatory Planning and Review) and the Regulatory Flexibility Act (RFA) (Public Law 96-354). Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). A regulatory impact analysis must be prepared for proposed rules with economically significant effects (that is, a proposed rule that would have an annual effect on the economy of $100 million or more or would adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities). We estimate the changes to the practice expense RVUs (not including earlier proposed changes to the work RVUs) may result in a redistribution of payments among physician specialties of approximately $100 million. We estimate the benefit changes in this proposed rule resulting from the BIPA will likely result in additional Medicare expenditures of $210 to $360 million or more for any single FY through FY 2006. Therefore, this proposed rule is considered economically significant, and, thus, we have prepared a regulatory impact analysis.
The RFA requires agencies to analyze options for regulatory relief of small businesses. For purposes of the RFA, small entities include small businesses, nonprofit organizations and government agencies. Most hospitals, and most other providers, physicians, and health care suppliers are small entities, either by nonprofit status or by having revenues of $7.5 million or less annually for physicians and $5 million or less for other practitioners. For purposes of the RFA and based on small business administration data for 1997, we estimate that there are 162,000 physician organizations that meet the definition of a small entity. There are about 700,000 physicians and other practitioners who receive Medicare payment under the physician fee schedule. Individuals and States are not included in the definition of a small entity.
Section 1102(b) of the Social Security Act requires us to prepare a regulatory impact analysis for any proposed rule that may have a significant impact on the operations of a substantial number of small rural hospitals. This analysis must conform to the provisions of section 603 of the RFA. For purposes of section 1102(b) of the Act, we define a small rural hospital as a hospital that is located outside a Metropolitan Statistical Area and has fewer than 100 beds.
Section 202 of the Unfunded Mandates Reform Act of 1995 also requires that agencies assess anticipated costs and benefits before issuing any rule that may result in expenditure in any one year by State, local, or tribal governments, in the aggregate, or by the private sector, of $110 million. We have determined that this proposed rule will have no consequential effect on State, local, or tribal governments. We believe the private sector cost of this rule falls below the above-stated threshold as well.
Thus, we have prepared the following analysis, which together with the rest of this preamble, meets all assessment requirements. It explains the rationale for, and purposes of, the rule, details the costs and benefits of the rule, analyzes alternatives, and presents the measures we propose to use to minimize the burden on small entities.
Under section 1848(c)(2) of the Act, adjustments to relative value units may not cause the amount of expenditures to differ by more than $20 million from the amount expenditures would have been without such adjustments. We are proposing several changes that would result in a change of expenditures exceeding $20 million without offsetting adjustments to either the conversion factor or relative value units. In the June 8, 2001 Five-Year Review of Relative Value Units Under the Physician Fee Schedule, (66 FR 31028), we described the specialty level impact on payments of proposed changes in work RVUs. We estimated that the increase in physician work RVUs would increase expenditures by more than $20 million without an offsetting adjustment to either the relative value units or conversion factor. We proposed to meet the budget neutrality requirements in the statute by reducing the physician fee schedule conversion factor by an estimated 0.3 percent. Since the changes to the physician work RVUs included in our earlier proposed notice will affect payments in 2002, we are repeating those impacts in Table 6. In addition, we are also showing the impact of proposed changes that will affect the practice expense relative value units.
With respect to practice expense, our policy has been to meet the budget neutrality requirements in the statute by incorporating a rescaling adjustment in the practice expense methodology. That is, we determined the aggregate number of practice expense relative values that will be paid under current and proposed policy in 2002. We apply a uniform adjustment factor to all proposed practice expense relative value units to make them equal to the aggregate
The three columns under the label “5-Year Review of Work” show the estimated change in payments that will result from our earlier notice on the 5-Year Review of Work Relative Value Units. The column labeled “Work” shows the impact on total payments that will result from increases in physician work relative value units. Since the practice expense relative value units are based, in part, on the physician work, the 5-year review will also result in a change to the practice expense relative value units. The column labeled “Practice Expense” shows this impact and includes the effect of the rescaling adjustment discussed above to make the practice expense relative value units budget neutral. The column labeled “Total” reflects the total impact on payments resulting from proposed changes in work and practice expense from the 5-year review of physician work. This column includes the effect of a 0.3 percent reduction to the physician fee schedule conversion factor to meet the budget neutrality requirements in the statute.
The column labeled “New Time” reflects the estimated specialty level impact on payments that will result from using new physician times in the practice expense methodology. As described earlier in section II.A., physician time is used in conjunction with information on practice expense per hour and Medicare utilization to create specialty practice expense pools that are used to allocate practice expenses to different services. The RUC earlier indicated to us that some of the times we were using in the practice expense methodology differed from the times included in the RUC database. We understand that the RUC has made substantial efforts to validate the time in its database with physician specialty societies and to supply us with times that were missing for some services. The RUC recently forwarded the results of this effort to us and is recommending that we use the new times in the practice expense methodology. In addition, several physician specialty societies obtained new and more recent survey times as a result of the five-year review of physician work. The RUC has reviewed and forwarded these times to us as well and is also recommending that we use them in the practice expense methodology. We believe the times supplied to us by the RUC are more likely to be reflective of the actual time it takes to perform a procedure. For this reason, we are proposing to use these new times in the practice expense methodology. As indicated in our June 8, 2001 proposed notice, our expectation was that the substitution of new times would reduce payments to cardiac and thoracic surgeons because the new times for many heart and chest procedures are shorter than those we have been using in the practice expense methodology. We estimate that substitution of new physician times will reduce payments to cardiac and thoracic surgeons by an estimated 5 and 4 percent, respectively. Combining this reduction with the change in work relative value units will result in a total estimated increase in payments from between 0 and 1 percent for cardiac and thoracic surgeons. We estimate change in payments to other specialties from using new time data will be one percent or less.
The column labeled “New SMS” refers to our proposal to recalculate the practice expense per hour data based on the 1995 through 1999 SMS. (We refer to the SMS based on its publication year. The practice expense data is actually from surveys performed the year prior to publication. For example, the 1998 SMS includes 1997 cost data.) The proposed changes in practice expense per hour from incorporating the latest SMS data are modest. Payments to pathologists are estimated to increase by 2 percent. Specialty 69—Independent Laboratory, the largest specialty included in the supplier category, bills for many of the same services as pathologists, producing our estimated 2 percent increase in Medicare payments to suppliers.
The column labeled “Clinical Labor Repricing” reflects our proposal to use 1999 information from the Bureau of Labor Statistics to update the wage rate information that is used to price clinical labor inputs in the practice expense methodology. We estimate that this proposal will result in less than a 1 percent change in payments to any physician specialty.
The column labeled “Other” refers to our proposal to make minor modifications to the specialty utilization. As discussed earlier, we are proposing to recode the specialty for several very low volume physician specialties that likely have practice expenses that are similar to other larger physician specialties. In addition, this policy reflects our proposal to drop the utilization for a number of specialties from the practice expense methodology because a very small percentage (one percent or less) of their allowed charges are from physician fee schedule services. The modifications to the utilization data that we are proposing have virtually no specialty level impact on any specialty.
Table 7 shows the impact on payments for selected high volume procedures of all of the changes previously discussed. This table shows the combined impact of the change in physician work and the fully implemented practice expense relative value units on total payment for the procedure. There are separate columns that show the change in the old and new facility rates and the old and new nonfacility rates. The table does not show the actual change in payments from 2001 to 2002 for the procedures because the “old” payments do not take into account that the practice expense relative value units in 2001 are a blend of the old charge-based relative value units and the new resource-based practice expense relative value determined under current policy. We show the amounts in this way to isolate the impact of new proposals on the change in payment without including the effect of continuing to transition resource-based practice expense relative value units that will occur regardless of whether we publish this proposed rule. For an explanation of facility and non-facility practice expense refer to § 414.22(b)(5)(i).
As discussed in section II.B. of the preamble, this proposed regulation would expand the scope of who is allowed to perform screening flexible sigmoidoscopies for Medicare coverage and payment purposes to include nurse practitioners, physician assistants, and clinical nurse specialists, as long as those practitioners meet applicable Medicare qualification requirements, and they are authorized to perform those screening services under State law. At present, the Medicare condition of coverage for screening flexible sigmoidoscopies limits coverage of those services to those that are performed by either a doctor of medicine or osteopathy (as defined in section 1861(r)(1) of the Act) who is authorized under State law to perform the examination.
We estimate that this expansion in the scope of who is allowed to perform screening flexible sigmoidoscopies will increase beneficiary access to these screening services and will result in an increase in the number of covered exams that are performed. At the same time, we estimate that this proposed rule will result in a decrease in payments that are made for certain screening flexible sigmoidoscopies because they will be performed by nurse practitioners, physician assistants, and clinical nurse specialists who are paid at 85 percent of the amount of payment that is made to physicians for the same screening service. Taking these factors into account, we estimate that this proposal will result in negligible additional Medicare program costs. For a more detailed discussion of this provision see section II.B. of this preamble.
We are proposing to allow auxiliary personnel to provide services incident to the services of physicians or practitioners who supervise them, regardless of the employment relationship. There are no costs or savings to the Medicare program associated with this proposal because the same physicians and practitioners would have performed these services before publication of this proposed rule. For a more detailed discussion of this provision see section II.C. of this preamble.
As previously discussed in section II.D. of the preamble, with the exception of codes 00142 and 00147, we propose to use the same anesthesia base unit per anesthesia code as the ASA provides in its uniform relative value guide. There are eight codes for which the base unit values would be different under our proposed rule.
Under this proposal, the estimated total number of base units would decrease. This is due primarily to the fact that code 001214 is the dominant code in terms of allowed services and the base unit for this code would decrease from 10 to 8 units.
To maintain neutrality in the anesthesia conversion factor, we would provide for a slight increase in the
As previously discussed in section II.E. of the preamble, the AMA has developed two new categories of codes: performance codes and emerging technology. Allowing the performance measurement code to be referenced on Medicare billing forms will have no budgetary impact since we are not proposing payment for these codes. We are proposing to allow for carrier pricing of the emerging technology codes.
We expect that the emerging technology codes will be used infrequently and may be used in place of “unlisted” procedure codes that are also carrier priced. There would be few, if any, no Medicare program costs associated with this proposal. For a more detailed discussion of this provision see section II.E. of this preamble.
The following provisions of the BIPA are discussed in detail in section III of this preamble. This proposed rule would conform the regulations text to the BIPA provisions. Table 8 provides the estimated costs (in millions of dollars) for the Medicare program for these provisions for the fiscal years shown:
As discussed in section III.A. of the preamble, the BIPA eliminates the statutorily prescribed payment rate for screening mammography and specifies that it will be paid under the physician fee schedule beginning January 1, 2002. To pay for the professional component of the screening mammography, we propose to use the work and malpractice RVUs that have been established for unilateral diagnostic mammography. We are establishing the practice expense RVUs for the professional component under the resource-based methodology. To establish practice expense RVUs for the technical component, we propose using the statutory payment limit and the applicable physician fee schedule update factor used each year. Currently, we pay for screening mammography under section 1834(c) of the Act. Payment for screening mammography is not subject to the budget neutrality requirements that apply to physician fee schedule services under section 1848(c)(2)(B)(ii)(II) of the Act. Effective January 1, 2002, screening mammography will be subject to the budget neutrality requirements that apply to physician fee schedule services. We will include the current payment amounts for screening mammography in aggregate physician fee schedule payments subject to the budget neutrality requirements. As a result, the BIPA requirement to pay for screening mammography under the physician fee schedule will not result in an increase in Medicare program expenditures. However, the increase in payment for screening mammography under the physician fee schedule will be included in the budget neutrality adjustments that apply to physician fee schedule services. The BIPA also establishes a methodology for determining payment for certain types of new technology that are used in providing both diagnostic and screening mammography services. The statutory provisions are in effect from April 1, 2001 to December 31, 2001. The statute gives us the authority to determine whether separate codes and payment amounts are appropriate for screening and diagnostic mammography services that involve use of a new technology on or after January 1, 2002. We are proposing several new codes and fee schedule amounts for screening and diagnostic mammography services that involve use of a new technology. The BIPA provisions related to new technology mammography will result in the Medicare program costs shown in Table 8. The BIPA makes no changes to provisions for Medicare coverage of screening mammography.
As discussed in section III.B. of the preamble, section 101 of the BIPA provides for expanded coverage for screening pelvic examinations (including a clinical breast examination) furnished on or after July 1, 2001. Specifically, the revised benefit will allow for biennial coverage of screening pelvic examination for all women who do not qualify under the law for annual coverage of such tests. We estimate that this change in the frequency of coverage for certain beneficiaries will result in an increase in Medicare payments. These payments will be made to a large number of physicians and other practitioners who provide these tests, any medically necessary follow-up tests, or treatment that may be required as a result of the increased frequency of coverage of these tests. Medicare program expenditures associated with screening pelvic examinations have been included in the budget. The impact of this provision is shown in Table 8.
As discussed in section III.C. of the preamble, section 102 of the BIPA authorizes coverage of glaucoma screening examinations effective January 1, 2002, subject to certain frequency and other limitations. We believe services provided as part of glaucoma screening will often overlap with other services a physician provides during a patient encounter that is associated with a higher payment amount. We believe that physicians will more commonly provide glaucoma tests in conjunction with other services and will rarely provide only glaucoma screening to Medicare patients. Based on the projected utilization of these screening services and related medically necessary follow-up tests and treatment that may be required for the beneficiaries screened, we estimate that this new benefit will result in an
As discussed in section III.D. of the preamble, section 103 of the BIPA amended the Act to add coverage of screening colonoscopies once every 10 years for individuals not at high risk for colorectal cancer. We estimate that this new benefit will result in an increase in Medicare payments. These payments will be made to practitioners who will provide these screening tests and related follow-up tests and treatment that may be required. The impact of this provision is shown in Table 8.
As discussed in section III.E. of the preamble, section 105 of the BIPA amended the Act to authorize Medicare coverage under Part B of medical nutrition therapy (MNT) for beneficiaries who have diabetes or renal disease, effective for services furnished on or after January 1, 2002. We propose to implement this provision at part 410, subpart G. Specifically, the proposed rule discusses the education, experience, and licensing requirements for dietitians or nutritionists furnishing the service. In addition, the proposed rule discusses the payment provisions, a referral requirement, and the manner by which the medical nutrition therapy and diabetes outpatient self-management training benefits will be coordinated to avoid duplicate payment. We also propose to establish payment amounts for these services under the physician fee schedule.
We estimate that this new benefit will result in an increase in Medicare payments. These payments will be made to dietitians and nutrition professionals who will provide these diagnostic therapy and counseling services. Costs to the Medicare program associated with this provision are shown in Table 8.
We estimate that the cost of providing office or other outpatient visits, consultation services, individual psychotherapy, and pharmacologic management in accordance with section 223 of the BIPA will be approximately $20 million in FY 2002 and approximately $60 million by FY 2006, as indicated above in Table 8.
This rule does not mandate that entities provide consultation, office or other outpatient visits, individual psychotherapy or pharmacological management services via a telecommunications system. Thus, this rule would not require entities to purchase telehealth equipment or to acquire the telecommunications infrastructure necessary to deliver these services via a telecommunications system. Therefore, this rule does not impose costs associated with starting and operating a telehealth network.
As discussed in section III.G. of the preamble, in addition to payment for Medicare services in hospitals and skilled nursing facilities, section 432 of the BIPA authorizes payment under the physician fee schedule to physicians and certain practitioners for services furnished in a hospital and an ambulatory care clinic, whether provider-based or free-standing, of the Indian Health Service effective for services furnished on or after July 1, 2001. We propose to add a new § 410.46 to conform our regulations to the statute. Costs to the Medicare program for this BIPA provision are shown in Table 8.
As discussed in section III.H. of the preamble, in the November 2, 1999 physician fee schedule final rule (64 FR 59381), we stated that we would implement a policy to pay only hospitals for the TC of physician pathology services furnished to hospital inpatients. Before the effective date of this proposal, any independent laboratory could bill the carrier under the physician fee schedule for the TC of physician pathology to a hospital inpatient. The regulation provided that for services furnished on or after January 1, 2001, the carriers would no longer pay claims to an independent laboratory under the physician fee schedule for the TC of physician pathology services furnished for hospital inpatients. Similar treatment was provided under the hospital outpatient prospective payment system for the TC of physician pathology services to hospital outpatients. We delayed implementation of this provision for one year; it was to take effect for services furnished on or after January 1, 2001. The delay was intended to allow independent laboratories and hospitals sufficient time to negotiate arrangements.
Section 542 of the BIPA requires Medicare to continue to pay for the TC of physician pathology services when an independent laboratory furnishes this service to an inpatient or outpatient of a covered hospital. This provision applies to TC services furnished during the 2-year period beginning on January 1, 2001.
In the November 2, 1999 final rule, we estimated that payment under the physician fee schedule for TC billings by independent laboratories would decrease by $6 million per year if the original proposal had been implemented on January 1, 2001. As a result of the BIPA, these savings are not realized for two years.
Each year since the fee schedule has been implemented, our actuaries have determined any adjustments needed to meet the budget neutrality requirement of the statute. A component of the actuarial determination of budget-neutrality involves estimating the impact of changes in the volume and intensity of physicians' services provided to Medicare beneficiaries as a result of the proposed changes. Since the November 1998 final rule (63 FR 58891), we have used a model that assumes 30 percent of anticipated payment reductions will be offset through an increase in the volume and intensity of services. We will continue to use the same assumption in this year's final rule.
Although changes in physicians' payments were large when the physician fee schedule was implemented in 1992, we detected no problems with beneficiary access to care. Furthermore, since beginning our transition to a resource-based practice expense system in 1999, we have not found that there are problems with beneficiary access to care. In addition, the implementation of the BIPA proposals that are contained in this rule will improve beneficiary access to health care under the Medicare program since certain preventative services, such as screening glaucoma, will now be covered for the first time and coverage of several existing services is being expanded.
We have examined this proposed rule in accordance with Executive Order 13132 and have determined that this regulation would not have any negative impact on the rights, roles, or responsibilities of State, local, or tribal governments.
In accordance with the provisions of Executive Order 12866, this regulation
Administrative practice and procedure, Health facilities, Health professions, Kidney diseases, Medicare, Reporting and recordkeeping requirements, Rural areas, X-rays.
Health facilities, Health professions, Kidney diseases, Laboratories, Medicare, Rural areas, X-rays.
Kidney diseases, Medicare, Reporting and recordkeeping requirements.
Administrative practice and procedure, Health facilities, Health professions, Kidney diseases, Medicare, Reporting and recordkeeping requirements, Rural areas, X-rays.
Health facilities, Health professions, Medicare, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, the Health Care Financing Administration proposes to amend 42 CFR chapter IV as follows:
1. The authority citation for part 405 continues to read as follows:
Secs. 1102 and 1871 of the Social Security Act (42 U.S.C. 1302 and 1395hh).
2. In § 405.534, an introductory paragraph is added to read as follows:
The provisions in paragraphs (a), (b), and (c) of this section apply for services provided from January 1, 1991 until December 31, 2001. Screening mammography services provided after December 31, 2001 are paid under the physician fee schedule in accordance with § 414.2 of this chapter.
3. In § 405.535, the section heading is revised and the introductory text is amended by adding two sentences to the beginning to read as follows:
The provisions in this section apply for screening mammography services provided from January 1, 1991 until December 31, 2001. Screening mammography services provided after December 31, 2001 are paid under the physician fee schedule in accordance with § 414.2 of this chapter. * * *
1. The authority citation for part 410 continues to read as follows:
Secs. 1102 and 1871 of the Social Security Act (42 U.S.C. 1302 and 1395hh).
2. Section 410.3 is amended by revising paragraph (a)(1) to read as follows:
(a) * * *
(1) Medical and other health services such as physicians' services, outpatient services furnished by a hospital or a CAH, diagnostic tests, outpatient physical therapy and speech pathology services, rural health clinic services, Federally qualified health center services, IHS, Indian tribe, or tribal organization facility services, and outpatient renal dialysis services.
3. Section 410.10 is amended by adding paragraph (x) to read as follows:
(x) IHS, Indian tribe, or tribal organization facility services.
4. Section 410.22 is redesignated as § 410.21, § 410.23 is redesignated as § 410.22, and a new § 410.23 is added to read as follows:
(a)
(1)
(2)
(i) Individual with diabetes mellitus;
(ii) Individual with a family history of glaucoma; or
(iii) African-Americans age 50 and over.
(3)
(i) A dilated eye examination with an intraocular pressure measurement.
(ii) A direct ophthalmoscopy examination, or a slit-lamp biomicroscopic examination.
(b)
Medicare Part B pays for glaucoma screening examinations provided to eligible beneficiaries as described in paragraph (a)(2) of this section if they are furnished by or under the direct supervision in the office setting of an optometrist or ophthalmologist who is legally authorized to perform these services under State law (or the State regulatory mechanism provided by State law) of the State in which the services are furnished, as would otherwise be covered if furnished by a physician or incident to a physician's professional service.
(c)
(1) Payment may not be made for a glaucoma screening examination that is performed for an individual who is not an eligible beneficiary as described in paragraph (a)(2) of this section.
(2) Payment may be made for a glaucoma screening examination that is performed on an individual who is an eligible beneficiary as described in paragraph (a)(2) of this section, after at least 11 months have passed following the month in which the last glaucoma screening examination was performed.
5. In § 410.26, paragraph (b) is redesignated as paragraph (c), paragraph (a) is redesignated as paragraph (b) and revised, a new paragraph (a) is added, and newly designated paragraph (c) is amended by adding a paragraph heading:
(a)
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(b) Medicare Part B pays for services and supplies incident to the service of a physician (or other practitioner).
(1) Services and supplies must be furnished in a noninstitutional setting to noninstitutional patients.
(2) Services and supplies must be an integral, though incidental, part of the service of a physician (or other practitioner) in the course of diagnosis or treatment of an injury or illness.
(3) Services and supplies must be commonly furnished without charge or included in the bill of a physician (or other practitioner).
(4) Services and supplies must be of a type that are commonly furnished in the office or clinic of a physician (or other practitioner).
(5) Services and supplies must be furnished under the supervision of the physician (or other practitioner).
(6) Services and supplies must be furnished by the physician, practitioner with an incident to benefit, or auxiliary personnel.
(7) A physician (or other practitioner) may be an employee or an independent contractor.
(c)
6. In § 410.37, paragraphs (d), (e)(2), and (g) are revised and paragraph (e)(3) is added to read as follows:
(d)
(e)
(2) For an individual 50 years of age or over, except as described in paragraph (e)(3) of this section, payment may be made for screening flexible sigmoidoscopy after at least 47 months have passed following the month in which the last screening flexible sigmoidoscopy or, as provided in paragraphs (h) and (i) of this section, the last screening barium enema was performed.
(3) In the case of an individual who is not at high risk for colorectal cancer as described in paragraph (a)(3) of this section but who has had a screening colonoscopy performed, payment may be made for a screening flexible sigmoidosocopy only after at least 119 months have passed following the month in which the last screening colonoscopy was performed.
(g)
(2) Effective for services furnished on or after July 1, 2001, except as described in paragraph (g)(4) of this section, payment may be made for a screening colonoscopy performed for an individual who is not at high risk for colorectal cancer as described in paragraph (a)(3) of this section, after at least 119 months have passed following the month in which the last screening colonoscopy was performed.
(3) Payment may be made for a screening colonoscopy performed for an individual who is at high risk for colorectal cancer as described in paragraph (a)(3) of this section, after at least 23 months have passed following the month in which the last screening colonoscopy was performed, or, as provided in paragraphs (h) and (i) of this section, the last screening barium enema was performed.
(4) In the case of an individual who is not at high risk for colorectal cancer as described in paragraph (a)(3) of this section but who has had a screening flexible sigmoidoscopy performed, payment may be made for a screening colonoscopy only after at least 47 months have passed following the month in which the last screening flexible sigmoidoscopy was performed.
7. Section 410.46 is added to read as follows:
(a) Medicare Part B pays, in accordance with the physician fee schedule, for services furnished in or at the direction of a hospital or outpatient clinic (provider-based or free-standing) that is operated by the Indian Health Service (IHS) or by an Indian tribe or tribal organization (as those terms are defined in section 4 of the Indian Health Care Improvement Act). These services are subject to the same situations, terms, and conditions that would apply if the services were furnished in or at the direction of a hospital or clinic that is not operated by IHS or by an Indian tribe or tribal organization. Payments include health professional shortage areas incentive payments when the requirements for these incentive payments in § 414.42 of this chapter are met.
(b) Payment is not made under this section to the extent that Medicare otherwise pays for the same services under other provisions.
(c) Payment is made under these provisions for the following services:
(1) Services for which payment is made under the physician fee schedule in accordance with part 414 of this chapter.
(2) Services furnished by non-physician practitioners for which payment under Part B is made under the physician fee schedule.
(3) Services furnished by a physical therapist or occupational therapist, for which payment under Part B is made under the physician fee schedule.
(d) Payments under these provisions will be paid to the IHS or tribal hospital or clinic.
8. In § 410.56, paragraphs (b)(1), the introductory text of (b)(2), and (b)(3) are revised to read as follows:
(b) * * *
(1)
(2)
(3)
9. Section 410.78 is revised to read as follows:
(a)
(1)
(2)
(3)
(4)
(b)
(1) The physician or practitioner at the distant site must be licensed to provide the service under State law. When the physician or practitioner at the distant site is licensed under State law to provide a covered telehealth service (that is, professional consultations, office and other outpatient visits, individual psychotherapy, and pharmacologic management), he or she may bill for, and receive payment for, this service when delivered via a telecommunications system.
(2) The practitioner at the distant site is one of the following:
(i) A physician as described in § 410.20.
(ii) A physician assistant as described § 410.74.
(iii) A nurse practitioner as described in § 410.75.
(iv) A clinical nurse specialist as described in § 410.76.
(v) A nurse-midwife as described in § 410.77.
(vi) A clinical psychologist as described in § 410.71.
(vii) A clinical social worker as described in § 410.73.
(3) The services are furnished to a beneficiary at an originating site, which is one of the following:
(i) The office of a physician or practitioner.
(ii) A critical access hospital (as described in section 1861(mm)(1) of the Act).
(iii) A rural health clinic (as described in section 1861(aa)(2) of the Act).
(iv) A Federally qualified health center (as defined in section 1861(aa)(4) of the Act).
(v) A hospital (as defined in section 1861(e) of the Act).
(4) Originating sites must be located in either a rural health professional shortage area as defined under section 332(a)(1)(A) of the Public Health Service Act (42 U.S.C. 254e(a)(1)(A)) or in a county that is not included in a Metropolitan Statistical Area as defined in section 1886(d)(2)(D) of the Act. Entities participating in a Federal telemedicine demonstration project that have been approved by, or receive funding from, the Secretary as of December 31, 2000 qualify as an eligible originating site regardless of geographic location.
(5) The medical examination of the patient is under the control of the physician or practitioner at the distant site.
(c)
(d)
(e)
10. A new subpart G is added to read as follows:
For the purposes of this subpart, the following definitions apply:
(a)
(b)
(1) Medical nutrition therapy services are not covered for beneficiaries receiving maintenance dialysis for which payment is made under section 1881 of the Act.
(2) If a beneficiary has both diabetes and renal disease, the beneficiary may receive both MNT and DSMT, but coverage is limited to the number of hours the beneficiary would receive under either the MNT benefit or the DSMT benefit for the episode of care, whichever is greater.
(3) Medical nutrition therapy is only covered if the beneficiary has not started initial training under the diabetes self-management training benefit as described in § 410.141 within the 12 months previous to initial referral for MNT, unless—
(i) The need for a reassessment and additional therapy has been documented by the referring physician as a result of a change in diagnosis or medical condition; or
(ii) The beneficiary is diagnosed with both diabetes and renal disease.
(4) If a beneficiary diagnosed with diabetes has been referred for both follow-up diabetes self-management training services and medical nutrition therapy, the number of hours the beneficiary may receive is limited to the number of hours under either follow-up diabetes self-management training services or medical nutrition therapy for any 12 month period.
(c)
(d)
For Medicare Part B coverage of medical nutrition therapy, only a registered dietitian or nutrition professional may provide the services. “Registered dietitian or nutrition professional” means an individual who on or after December 22, 2000—
(a) Holds a bachelor's or higher degree granted by a regionally accredited college or university in the United States (or an equivalent foreign degree) with completion of the academic requirements of a program in nutrition or dietetics, as accredited by an appropriate national accreditation organization recognized for this purpose;
(b) Has completed at least 900 hours of supervised dietetics practice under the supervision of a registered dietitian or nutrition professional; and
(c) Is licensed or certified as a dietitian or nutrition professional by the State in which the services are performed. In a State that does not provide for licensure or certification, the individual will be deemed to have met this requirement if he or she is recognized as a “registered dietitian” by the Commission on Dietetic Registration or its successor organization, or meets the requirements of paragraphs (a) and (b) of this section; or a dietitian or nutritionist licensed or certified in a State as of December 21, 2000.
1. The authority citation for part 411 continues to read as follows:
Secs. 1102 and 1871 of the Social Security Act (42 U.S.C. 1302 and 1395hh).
2. In § 411.15, paragraph (a)(1) is revised, and a new paragraph (k)(10) is added to read as follows:
(a) * * *
(1) Examinations performed for a purpose other than treatment or diagnosis of a specific illness, symptoms, complaint, or injury, except for screening mammography, colorectal cancer screening tests, screening pelvic examinations, prostate cancer screening tests, or glaucoma screening exams that meet the criteria specified in paragraphs (k)(6) through (k)(10) of this section.
(k) * * *
(10) In the case of screening exams for glaucoma, for the purpose of early detection of glaucoma, subject to the conditions and limitations specified in § 410.23 of this chapter.
1. The authority citation for part 414 continues to read as follows:
Secs. 1102, 1871, and 1881(b)(1) of the Social Security Act (42 U.S.C. 1302, 1395hh, and 1395rr(b)(1)).
2. In 414.2, the definition of “Physician services” is amended by
(8) Screening mammography services.
3. A new § 414.64 is added to read as follows:
(a)
(b)
(c)
(d)
(e)
(1) Is not an inpatient of a hospital, SNF, nursing home, or hospice.
(2) Is not receiving services in an RHC, FQHC or ESRD dialysis facility.
4. Section 414.65 is revised to read as follows:
(a)
(1) The Medicare payment amount for office or other outpatient visits, consultation, individual psychotherapy, and pharmacologic management via an interactive telecommunications system is equal to the current fee schedule amount applicable to services of the physician or practitioner.
(2) Only the physician or practitioner at the distant site may bill and receive payment for the professional service via an interactive telecommunications system.
(3) Payments made to the physician or practitioner at the distant site, including deductible and coinsurance, for the professional service may not be shared with the referring practitioner or telepresenter.
(b)
(1)
(2)
(c)
(d)
(1) Knowingly and willfully bills or collects for services in violation of the limitation of this section.
(2) Fails to timely correct excess charges by reducing the actual charge billed for the service in an amount that does not exceed the limiting charge for the service or fails to timely refund excess collections.
(3) Fails to submit a claim on a standard form for services provided for which payment is made on a fee schedule basis; or
(4) Imposes a charge for completing and submitting the standard claims form.
1. The authority citation for part 415 continues to read as follows:
Secs. 1102 and 1871 of the Social Security Act (42 U.S.C. 1302 and 1395hh).
2. Section 415.130 is amended by:
A. Redesignating paragraphs (a), (b), and (c) as paragraphs (b), (c), and (d).
B. Adding a new paragraph (a).
C. Amending newly designated paragraph (b)(3) by removing the reference “paragraph (b)” and adding “paragraph (c)” in its place.
D. Amending newly designated paragraph (b)(4) by removing the reference “paragraphs (b)(1), (b)(3), and (b)(4)” and adding “paragraphs (c)(1), (c)(3), and (c)(4)” in their place.
E. Revising newly designated paragraph (d).
(a)
(1)
(2)
(i) A Medicare+Choice plan under Part C of Title XVIII of the Act.
(ii) A plan offered by an eligible organization under section 1876 of the Act;
(iii) A program of all-inclusive care for the elderly (PACE) under 1894 of the Act; or
(iv) A social health maintenance organization (SHMO) demonstration project established under section 4018(b) of the Omnibus Budget Reconciliation Act of 1987.
(d)
These addenda will not appear in the Code of Federal Regulations.
The addenda on the following pages provide various data pertaining to the Medicare fee schedule for physicians' services furnished in 2002. Addendum B contains the RVUs for work, non-facility practice expense, facility practice expense, and malpractice expense, and other information for all services included in the physician fee schedule.
This addendum contains the following information for each CPT code and alphanumeric HCPCS code, except for alphanumeric codes beginning with B (enteral and parenteral therapy), E (durable medical equipment), K (temporary codes for nonphysicians' services or items), or L (orthotics), and codes for anesthesiology.
1.
2.
Modifier -53 is shown for a discontinued procedure. There will be RVUs for the code (CPT code 45378) with this modifier.
3.
A = Active code. These codes are separately payable under the fee schedule if covered. There will be RVUs for codes with this status. The presence of an “A” indicator does not mean that Medicare has made a national decision regarding the coverage of the service. Carriers remain responsible for coverage decisions in the absence of a national Medicare policy.
B = Bundled code. Payment for covered services is always bundled into payment for other services not specified. If RVUs are shown, they are not used for Medicare payment. If these services are covered, payment for them is subsumed by the payment for the services to which they are incident. (An example is a telephone call from a hospital nurse regarding care of a patient.)
C = Carrier-priced code. Carriers will establish RVUs and payment amounts for these services, generally on a case-by-case basis following review of documentation, such as an operative report.
D = Deleted code. These codes are deleted effective with the beginning of the calendar year.
E = Excluded from physician fee schedule by regulation. These codes are for items or services that we chose to exclude from the physician fee schedule payment by regulation. No RVUs are shown, and no payment may be made under the physician fee schedule for these codes. Payment for them, if they are covered, continues under reasonable charge or other payment procedures.
G = Code not valid for Medicare purposes. Medicare does not recognize codes assigned this status. Medicare uses another code for reporting of, and payment for, these services.
N = Noncovered service. These codes are noncovered services. Medicare payment may not be made for these codes. If RVUs are shown, they are not used for Medicare payment.
P = Bundled or excluded code. There are no RVUs for these services. No separate payment should be made for them under the physician fee schedule.
R = Restricted coverage. Special coverage instructions apply. If the service is covered and no RVUs are shown, it is carrier-priced.
T = Injections. There are RVUs for these services, but they are only paid if there are no other services payable under the physician fee schedule billed on the same date by the same provider. If any other services payable under the physician fee schedule are billed on the same date by the same provider, these services are bundled into the service(s) for which payment is made.
X = Exclusion by law. These codes represent an item or service that is not within the definition of “physicians” services” for physician fee schedule payment purposes. No RVUs are shown for these codes, and no payment may be made under the physician fee schedule. (Examples are ambulance services and clinical diagnostic laboratory services.)
4.
5.
6.
7.
8.
9.
10.
11.
MMM = The code describes a service furnished in uncomplicated maternity cases including antepartum care, delivery, and postpartum care. The usual global surgical concept does not apply. See the 1999 Physicians' Current Procedural Terminology for specific definitions.
XXX = The global concept does not apply.
YYY = The global period is to be set by the carrier (for example, unlisted surgery codes).
ZZZ = The code is part of another service and falls within the global period for the other service.
Notice Extending Deadline for Submission of Electronic Applications.
On May 22, 2001, the Assistant Secretary for Elementary and Secondary Education published in the
On July 23, 2001, a power outage affected the Department of Education's computer system and some applicants that had intended to submit electronic applications were unable to do so by the established deadline. The Department is therefore extending the deadline for submission of electronic applications under the program. The deadline for submission of applications by hand delivery or by mail is not being extended.
Christine Jackson, Dropout Prevention Demonstration Program, Academic Improvement and Demonstration Programs, Office of Elementary and Secondary Education, U.S. Department of Education, 400 Maryland Avenue, S.W., Room 2W104, FOB-6, Washington, DC 20202-6254. Telephone: (202) 260-2516. e-mail: christine.jackson@ed.gov. Individuals who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-888-877-8339.
Individuals with disabilities may obtain this notice in an alternative format (e.g., Braille, large print, audiotape, or computer diskette) on request to the contact person listed in the preceding paragraph. Please note, however, that the Department is not able to reproduce in an alternative format the standard forms included in the notice.
Applicants that wish to submit an electronic application under the Dropout Prevention Demonstration Program must do so by the date established in this notice and comply with the requirements in the Notice Inviting Applications. As that notice states, applicants that submit electronic applications must, among other things, do so by 4:30 p.m. (EST) on the deadline date and fax a signed copy of ED 424 (Application for Federal Assistance) to the Department's Application Control Center within three working days of submitting their applications.
Some applicants that initially attempted to submit their applications electronically but were precluded from doing so due to the power outage instead submitted their applications by mail by the deadline in the Notice Inviting Applications. If any of these applicants did not include a signed copy of ED 424 with their submission, they may fax a signed copy of this form to the Department's Application Control Center within three days of the revised deadline for submission of electronic applications.
You may view this document, as well as all other Department of Education documents published in the
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